0001|     
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0002|                           SENATE BILL 207
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0003|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0004|                            INTRODUCED BY
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0005|                            L. SKIP VERNON
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0006|     
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0007|                                   
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0008|     
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0009|                                   
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0010|     
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0011|                                AN ACT
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0012|     RELATING TO HEALTH CARE PROVIDERS; ESTABLISHING CRIMINAL
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0013|     HISTORY SCREENING REQUIREMENTS FOR CAREGIVERS; REPEALING
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0014|     SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.
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0015|     
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0016|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017|          Section 1.  TITLE.--Sections 1 though 5 of this act may
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0018|     be cited as the "Caregivers Criminal History Screening Act".
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0019|          Section 2.  PURPOSE.--The purpose of the Caregivers
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0020|     Criminal History Screening Act and its requirement that
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0021|     caregivers undergo a nationwide criminal history screening is
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0022|     to ensure to the highest degree possible the prevention of
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0023|     abuse, neglect or financial exploitation of care recipients.
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0024|          Section 3.  DEFINITIONS.--As used in the Caregivers
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0025|     Criminal History Screening Act:
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<center>- 1 -</center>

0001|               A.  "Applicant" means a person who seeks and is
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0002|     offered employment, contractual service or volunteer service
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0003|     as a caregiver with a care provider.
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0004|               B.  "Caregiver" means a person, not otherwise
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0005|     required to undergo a nationwide criminal history screening by
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0006|     the New Mexico Children's and Juvenile Facility Criminal
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0007|     Records Screening Act [32A-15-1 to 32A-15-4 NMSA 1978], whose
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0008|     employment, contractual service or volunteer service with a
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0009|     care provider includes  direct care or routine and
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0010|     unsupervised physical or financial access to any care
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0011|     recipient served by that provider;
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0012|               C. "Care provider" or "provider" means a skilled
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0013|     nursing facility; intermediate care facility; care facility
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0014|     for the mentally retarded; psychiatric facility;
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0015|     rehabilitation facility; home health agency; homemaker agency;
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0016|     home for the aged or disabled; group home; adult foster care
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0017|     home; private residence that provides personal care, adult
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0018|     residential care, or nursing care for two or more persons not
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0019|     related by blood or marriage to the facility's operator or
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0020|     owner; adult daycare center; boarding home; adult residential
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0021|     care home; residential service or habilitation service
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0022|     providers authorized to be reimbursed by Medicaid; any
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0023|     licensed or Medicaid certified entity, or any program funded
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0024|     by the state agency on aging, that provides respite, companion
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0025|     or personal care services; however, it does not include
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<center>- 2 -</center>

0001|     general acute care hospitals, and resident care facilities
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0002|     located at or performing services exclusively for any
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0003|     correctional facility;
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0004|               D.  "care recipient" means any person under the
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0005|     care of a provider who has a physical or mental illness,
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0006|     injury or disability or who suffers from any cognitive
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0007|     impairment that restricts or limits the person's activities;
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0008|               E.  "Nationwide criminal history screening" means a
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0009|     criminal history background investigation of an applicant or
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0010|     caregiver through the use of fingerprints collected by the New
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0011|     Mexico department of public safety and submitted to the
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0012|     federal bureau of investigation, resulting in generation of a
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0013|     nationwide criminal history record for that applicant or
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0014|     caregiver;
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0015|               F.  "Nationwide criminal history record" means
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0016|     information concerning a person's arrests, indictments, or
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0017|     other formal criminal charges, and any dispositions arising
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0018|     therefrom, including convictions, dismissals, acquittals,
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0019|     sentencing, and correctional supervision, collected by
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0020|     criminal justice agencies and stored in the computerized
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0021|     databases of the federal bureau of investigation, the National
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0022|     Law Enforcement Telecommunications System, the New Mexico
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0023|     department of public safety, or the repositories of criminal
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0024|     history information of other states.
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0025|               G.  "Volunteer service" means the performance of
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<center>- 3 -</center>

0001|     work for a care provider by a person who is not financially
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0002|     compensated for that work or who receives a nominal stipend
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0003|     for that work and who assists the care provider by filling a
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0004|     position that would otherwise be held by an employee or
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0005|     independent contractor.
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0006|          Section 3.--CRIMINAL HISTORY SCREENING REQUIRED;
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0007|     REGULATORY IMPLEMENTATION; APPEALS.--
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0008|               A.  The department of health is authorized to
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0009|     receive an applicant's or caregiver's nationwide criminal
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0010|     history record obtained by the New Mexico department of public
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0011|     safety as a result of a nationwide criminal history records
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0012|     screening pursuant to an applicant's or caregiver's
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0013|     authorization for such criminal history records screening. 
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0014|     Providers shall submit a set of fingerprints of applicants and
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0015|     caregivers to the New Mexico department of public safety for a
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0016|     nationwide criminal history screening, and the New Mexico
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0017|     department of public safety shall accept such fingerprints for
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0018|     the purpose of conducting a nationwide criminal history
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0019|     screening.
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0020|               B.  The department of health is authorized to
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0021|     promulgate regulations to implement this act, including but
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0022|     not limited to regulations establishing a three year phased
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0023|     implementation based upon provider type; fingerprint
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0024|     submission procedures; fees; confidentiality; timeframes for
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0025|     an applicant's or caregiver's nationwide criminal history
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0001|     screening; procedures for clarifying incomplete or confusing
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0002|     criminal history information; provider sanctions for
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0003|     noncompliance; and employment procedures pending the results
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0004|     of the nationwide criminal history screening relating to
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0005|     volunteers, applicants, and caregivers.
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0006|               C.  No caregiver may be employed by a care provider
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0007|     unless the caregiver first has submitted to a request for a
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0008|     nationwide criminal history screening prior to beginning
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0009|     employment in accordance with procedures established by
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0010|     regulation by the departments of health and public safety, or
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0011|     unless the caregiver has submitted to a nationwide criminal
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0012|     history screening and has been cleared within the previous 12
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0013|     months.
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0014|               D.  The following felony convictions disqualify an
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0015|     applicant or caregiver from employment as a caregiver:
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0016|                    (1)  homicide;
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0017|                    (2)  trafficking controlled substances;
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0018|                    (3)  kidnapping, false imprisonment,
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0019|     aggravated assault or aggravated battery;
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0020|                    (4)  rape, criminal sexual penetration,
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0021|     criminal sexual contact, incest, indecent exposure, or other
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0022|     related sexual offenses;
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0023|                    (5)  crimes involving adult abuse, neglect or
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0024|     financial exploitation;
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0025|                    (6)  crimes involving child abuse or neglect;
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<center>- 5 -</center>

0001|               E.  Upon receipt by the department of health of the
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0002|     results of the applicant's or caregiver's nationwide criminal
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0003|     history record, the department of health shall give notice to
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0004|     the submitting care provider whether or not the applicant or
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0005|     caregiver has a disqualifying conviction of a crime specified
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0006|     in Subsection D of this section.  No other results of the
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0007|     applicant's or caregiver's criminal history records screening
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0008|     shall be provided to the care provider.  Except as provided in
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0009|     Subsection F of this section, a care provider shall not employ
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0010|     an applicant, or continue to employ a caregiver, whose
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0011|     criminal history screening records reflect a disqualifying
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0012|     conviction.  When the department of health provides notice to
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0013|     the care provider of a disqualifying conviction of a crime
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0014|     specified in Subsection D of this section, it shall also
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0015|     notify the applicant or caregiver, stating with specificity
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0016|     the convictions and arrests on which its decision is based and
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0017|     identifying the agency which provided the records.
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0018|               F.  An applicant or caregiver whose nationwide
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0019|     criminal history record, obtained through the applicant's or
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0020|     caregiver's criminal history records screening and other
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0021|     clarifying endeavors of the department of health, reflects a
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0022|     disqualifying conviction of a crime specified in Subsection D
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0023|     of this section may request from the agency on aging an
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0024|     administrative reconsideration.  The care provider may, in its
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0025|     discretion, continue to employ such person during the pendency
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<center>- 6 -</center>

0001|     of the reconsideration.  A care provider may employ the
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0002|     applicant or caregiver if the reconsideration proceeding
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0003|     results in a determination by the agency on aging that the
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0004|     applicant's or caregiver's nationwide criminal history record
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0005|     inaccurately reflects a disqualifying conviction of a crime
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0006|     specified in Subsection D of this section, or that the
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0007|     employment presents no risk of harm to a care recipient, or
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0008|     that the conviction does not directly bear upon the
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0009|     applicant's or caregiver's fitness for the employment.
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0010|               G.  The agency on aging is authorized to adopt
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0011|     regulations for the administrative reconsideration proceeding
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0012|     available to any applicant or caregiver whose nationwide
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0013|     criminal history record reflects a disqualifying conviction. 
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0014|     The regulations shall take into account the requirements of
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0015|     the Criminal Offender Employment Act, 28-2-1 to 28-2-6, NMSA
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0016|     1978.
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0017|               H.  A care provider shall maintain records
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0018|     evidencing compliance with the requirements of this section
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0019|     with respect to all applicants and caregivers employed on or
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0020|     after the effective date of this act.
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0021|               I.  All criminal history records obtained pursuant
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0022|     to this section by the department of health and the agency on
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0023|     aging are confidential.  No criminal history records obtained
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0024|     pursuant to this section shall be used for any purpose other
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0025|     than determining whether an applicant or caregiver has
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<center>- 7 -</center>

0001|     criminal records that disqualify him from employment as a
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0002|     caregiver.  Except on court order or with the written consent
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0003|     of the applicant or caregiver, criminal records obtained
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0004|     pursuant to this section and the information contained therein
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0005|     shall not be released or otherwise disclosed to any other
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0006|     person or agency.  Any person who discloses confidential
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0007|     records or information in violation of this section is guilty
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0008|     of a misdemeanor and shall be sentenced pursuant to the
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0009|     provisions of Subsection A of Section 31-19-1 NMSA 1978.
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0010|               J.  A care provider, including its administrators
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0011|     and employees, is not civilly liable to an applicant or a
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0012|     caregiver for a good faith decision to employ, not employ or
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0013|     terminate employment pursuant to this act.
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0014|               K.  Failure to comply with the requirements of this
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0015|     section are grounds for the state agency having enforcement
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0016|     authority with respect to the care provider to impose
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0017|     appropriate administrative sanctions and penalties.
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0018|          Section 4.--CONSTRUCTION; SEVERABILITY.--If any provision
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0019|     of the Caregivers Criminal History Screening Act or the
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0020|     application thereof to any person or entity or in any
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0021|     circumstances is held invalid, the remainder of that act and
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0022|     the application of such provision to others or in other
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0023|     circumstances shall not be affected thereby.
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0024|          Section 5.--REPEAL.--Section 29-17-1 NMSA 1978 (being
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0025|     Laws 1997, Chapter 202) is repealed.
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0001|          Section 6.--APPROPRIATION.--For fiscal year 1999, two
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0002|     hundred seventy five thousand dollars ($275,000) is
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0003|     appropriated to the department of health, two hundred twenty
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0004|     five thousand ($225,000) is appropriated to the department of
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0005|     public safety, and sixty thousand dollars ($60,000) is
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0006|     appropriated to the agency on aging from the general fund for
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0007|     the purpose of implementing the provisions of Caregivers
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0008|     Criminal History Screening Act.
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0009|                              
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