0001| SENATE BILL 651
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| L. SKIP VERNON
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0005|
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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| AN ACT
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0011| RELATING TO LONG-TERM CARE; REQUIRING CRIMINAL BACKGROUND
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0012| CHECKS FOR CAREGIVERS EMPLOYED BY LONG-TERM CARE PROVIDERS;
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0013| PROVIDING A PENALTY; DECLARING AN EMERGENCY.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. CRIMINAL RECORDS SCREENING FOR CAREGIVERS
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0017| EMPLOYED BY LONG-TERM CARE PROVIDERS.--
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0018| A. As used in this section:
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0019| (1) "applicant" means any person who seeks
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0020| employment or volunteer service as a caregiver with a long-term
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0021| care provider;
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0022| (2) "caregiver" means any person whose
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0023| employment or volunteer service with a long-term care provider
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0024| may or does allow physical or financial access to any long-term
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0025| care recipient served by that provider;
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0001| (3) "conviction" means any conviction of a
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0002| felony or a misdemeanor, including a conviction on a plea of
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0003| nolo contendere, of any crime specified in Subsection D of this
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0004| section;
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0005| (4) "long-term care provider" or "provider"
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0006| means a skilled nursing facility; intermediate care facility;
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0007| care facility for the mentally retarded; psychiatric facility;
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0008| rehabilitation facility; kidney disease treatment facility;
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0009| home health agency; homemaker agency; ambulatory surgical or
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0010| outpatient facility; home for the aged or disabled; group home;
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0011| adult foster care home; private residence that provides
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0012| personal care, sheltered care or nursing care for one or more
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0013| persons not related by blood or marriage to the facility's
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0014| operator or owner; adult daycare center; boarding home; adult
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0015| residential shelter care home; any entity that provides
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0016| respite, companion or personal care services; and any other
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0017| health or resident-care-related facility not a care facility
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0018| located at or performing services for any correctional
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0019| facility;
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0020| (5) "long-term care recipient" means any
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0021| person under the care of a long-term care provider who has a
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0022| physical or mental illness, injury or disability or who suffers
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0023| from any cognitive impairment that restricts or limits the
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0024| person's activities;
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0025| (6) "nationwide criminal records check" means:
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0001| (a) fingerprinting on federal-bureau-of-
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0002| investigation-approved fingerprint cards, submitting the cards
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0003| to the bureau and obtaining the nationwide conviction record of
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0004| an applicant or caregiver; or
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0005| (b) submitting an applicant's or
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0006| caregiver's authorization-for-release form to the federal
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0007| bureau of investigation for the purpose of obtaining the
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0008| nationwide conviction record of an applicant or caregiver; and
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0009| (7) "statewide criminal records check" means
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0010| fingerprinting on federal-bureau-of-investigation-approved
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0011| fingerprint cards, submitting the cards to the department of
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0012| public safety and obtaining the statewide conviction and
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0013| felony-arrest history of an applicant or caregiver.
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0014| B. A long-term care provider that seeks to employ
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0015| any caregiver shall conduct statewide and nationwide criminal
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0016| records checks of the applicant before an offer of employment
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0017| is made. The costs of the criminal records checks shall be
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0018| paid by either the provider or the applicant.
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0019| C. A long-term care provider that employs any
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0020| caregiver as of the effective date of this act shall conduct
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0021| statewide and nationwide criminal records checks of each such
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0022| caregiver within ninety days of the effective date of this act.
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0023| The costs of the criminal records checks shall be paid by
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0024| either the provider or the employee.
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0025| D. Any of the following convictions disqualify an
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0001| applicant or caregiver from employment as a caregiver:
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0002| (1) homicide;
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0003| (2) assault or battery;
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0004| (3) aggravated assault or aggravated battery;
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0005| (4) kidnapping or false imprisonment;
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0006| (5) rape, criminal sexual penetration,
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0007| criminal sexual contact, incest or other non-consensual or
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0008| forcible sexual acts;
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0009| (6) domestic violence;
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0010| (7) any crime involving adult abuse, neglect
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0011| or financial exploitation;
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0012| (8) any crime involving child abuse;
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0013| (9) indecent exposure;
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0014| (10) felony larceny, robbery, burglary or
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0015| aggravated burglary;
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0016| (11) felony trafficking controlled substances;
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0017| (12) arson; or
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0018| (13) any crime involving criminal fraud.
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0019| E. A long-term care provider shall not employ an
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0020| applicant, or continue to employ a caregiver, whose criminal
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0021| records reflect conviction of a crime specified in Subsection D
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0022| of this section.
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0023| F. A long-term care provider may refuse to employ
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0024| an applicant, or to continue to employ a caregiver, whose
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0025| criminal records reflect conviction of a crime other than those
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0001| specified in Subsection D of this section or a felony arrest
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0002| if, in the provider's discretion, employment or continued
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0003| employment is inadvisable.
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0004| G. If a long-term care provider refuses to employ
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0005| an applicant, or to continue to employ a caregiver, pursuant to
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0006| Subsection E or F of this section, the provider shall so notify
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0007| the applicant or caregiver, stating with specificity the
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0008| convictions and arrests on which refusal to employ is based and
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0009| identifying the agency which provided the records.
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0010| H. A long-term care provider shall afford an
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0011| applicant or caregiver refused employment or continued
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0012| employment a reasonable opportunity to demonstrate that the
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0013| criminal records are inaccurate, including an opportunity to
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0014| contact the agency that provided the records.
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0015| I. A long-term care provider shall maintain records
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0016| evidencing compliance with the requirements of this section
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0017| with respect to all applicants and caregivers employed on or
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0018| after the effective date of this act. These records shall be
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0019| subject to inspection by any governmental agency with
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0020| regulatory jurisdiction over the provider, including the
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0021| department of health, state agency on aging, attorney general's
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0022| medicaid fraud unit and children, youth and families
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0023| department. Criminal records maintained by the provider shall
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0024| be destroyed one year after an applicant is rejected or a
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0025| caregiver's employment is terminated, as applicable.
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0001| J. All criminal records obtained pursuant to this
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0002| section and the information contained therein are confidential.
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0003| No criminal records obtained pursuant to this section shall be
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0004| used for any purpose other than determining whether an
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0005| applicant or caregiver has criminal records that disqualify him
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0006| from employment as a caregiver. Except on court order or with
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0007| the written consent of the applicant or caregiver, criminal
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0008| records obtained pursuant to this section and the information
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0009| contained therein shall not be released or otherwise disclosed
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0010| to any other person or agency. Any person who discloses
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0011| confidential records or information in violation of this
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0012| subsection is guilty of a misdemeanor and shall be sentenced
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0013| pursuant to the provisions of Subsection A of Section 31-19-1
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0014| NMSA 1978.
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0015| K. A long-term care provider is not civilly liable
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0016| for a good-faith decision to employ, not employ or terminate
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0017| employment pursuant to this section.
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0018| L. Failure to comply with the requirements of this
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0019| section are grounds for any state agency having jurisdiction of
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0020| the long-term care provider, including the department of
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0021| health, state agency on aging, attorney general's medicaid
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0022| fraud unit and children, youth and families department, to
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0023| impose administrative sanctions and penalties, including
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0024| suspension or revocation of the provider's license and
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0025| imposition of fines.
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0001| Section 2. EMERGENCY.--It is necessary for the public
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0002| peace, health and safety that this act take effect immediately.
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0003| - 6 -
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0004|
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0005| FORTY-THIRD LEGISLATURE
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0006| FIRST SESSION, 1997
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0007|
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0008|
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0009| February 28, 1997
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0010|
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0011| Mr. President:
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0012|
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0013| Your PUBLIC AFFAIRS COMMITTEE, to whom has been
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0014| referred
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0015|
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0016| SENATE BILL 651
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0017|
|
0018| has had it under consideration and reports same with
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0019| recommendation that it DO NOT PASS, but that
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0020|
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0021| SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE
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0022| FOR SENATE BILL 651
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0023|
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0024| DO PASS, and thence referred to the JUDICIARY COMMITTEE.
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0025|
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0001| Respectfully submitted,
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0002|
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0003|
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0004|
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0005| __________________________________
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0006| Shannon Robinson, Chairman
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0007|
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0008|
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0009| Adopted_______________________ Not Adopted_______________________
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0010| (Chief Clerk) (Chief Clerk)
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0011|
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0012| Date ________________________
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0013|
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0014|
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0015| The roll call vote was 5 For 0 Against
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0016| Yes: 5
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0017| No: 0
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0018| Excused: Adair, Ingle, Vernon, Smith
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0019| Absent: None
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0020|
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0021| S0651PA1 SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
|
0022| SENATE BILL 651
|
0023| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
|
0024|
|
0025|
|
0001|
|
0002|
|
0003|
|
0004|
|
0005|
|
0006| AN ACT
|
0007| RELATING TO LONG-TERM CARE; REQUIRING CRIMINAL BACKGROUND
|
0008| CHECKS FOR CAREGIVERS EMPLOYED BY CARE PROVIDERS; DECLARING AN
|
0009| EMERGENCY.
|
0010|
|
0011| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
|
0012| Section 1. CRIMINAL RECORDS SCREENING FOR CAREGIVERS
|
0013| EMPLOYED BY CARE PROVIDERS.--
|
0014| A. As used in this section:
|
0015| (1) "applicant" means any person who seeks
|
0016| employment, contractual service or volunteer service as a
|
0017| caregiver with a care provider;
|
0018| (2) "caregiver" means any person whose
|
0019| employment, contractual service or volunteer service with a
|
0020| care provider includes routine and unsupervised physical or
|
0021| financial access to any care recipient served by that provider;
|
0022| (3) "care provider" or "provider" means a
|
0023| skilled nursing facility; intermediate care facility; care
|
0024| facility for the mentally retarded; psychiatric facility;
|
0025| rehabilitation facility; kidney disease treatment facility;
|
0001| home health agency; homemaker agency; ambulatory surgical or
|
0002| outpatient facility; home for the aged or disabled; group home;
|
0003| adult foster care home; private residence that provides
|
0004| personal care, sheltered care or nursing care for one or more
|
0005| persons not related by blood or marriage to the facility's
|
0006| operator or owner; adult daycare center; boarding home; adult
|
0007| residential shelter care home; any entity that provides
|
0008| respite, companion or personal care services; and any other
|
0009| health or resident care related facility not a care facility
|
0010| located at or performing services for any correctional
|
0011| facility;
|
0012| (4) "care recipient" means any person under the
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0013| care of a provider who has a physical or mental illness, injury
|
0014| or disability or who suffers from any cognitive impairment that
|
0015| restricts or limits the person's activities;
|
0016| (5) "conviction" means any conviction of a
|
0017| felony or a misdemeanor, including a conviction on a plea of
|
0018| nolo contendere, of any crime specified in Subsection D of this
|
0019| section;
|
0020| (6) "nationwide criminal records check" means:
|
0021| (a) fingerprinting on federal bureau of
|
0022| investigation approved fingerprint cards, submitting the
|
0023| fingerprint cards to the bureau and obtaining the nationwide
|
0024| conviction record of an applicant or caregiver; or
|
0025| (b) submitting an applicant's or caregiver's
|
0001| authorization for release form to the federal bureau of
|
0002| investigation for the purpose of obtaining the nationwide
|
0003| conviction record of an applicant or caregiver; and
|
0004| (7) "statewide criminal records check" means
|
0005| fingerprinting on federal bureau of investigation approved
|
0006| fingerprint cards, submitting the cards to the department of
|
0007| public safety and obtaining the statewide conviction and felony
|
0008| arrest history of an applicant or caregiver.
|
0009| B. A care provider that seeks to employ any caregiver
|
0010| shall initiate statewide and nationwide criminal records checks of
|
0011| the applicant before an offer of permanent employment is made. A
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0012| care provider may make a temporary offer of employment to an
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0013| applicant pending the results of the criminal records checks, and
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0014| shall initiate these checks within five days of making the
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0015| temporary offer of employment. A care provider may employ a
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0016| person prior to receiving and reviewing the results of the
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0017| criminal records checks for that person for a period not to exceed
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0018| sixty days. A care provider may accept the results of an
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0019| applicant's criminal records checks less than one year old,
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0020| provided the results are obtained from the applicant's previous
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0021| employer pursuant to the applicant's written consent. An
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0022| applicant whose profession requires statewide and nationwide
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0023| criminal records checks as a prerequisite for professional
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0024| licensure may disclose the results of any such records checks to
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0025| the care provider in lieu of undergoing the records checks
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0001| required by this section. The costs of the criminal records
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0002| checks shall be paid by either the provider or the applicant.
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0003| C. A care provider that employs any caregiver as of the
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0004| effective date of this act shall initiate statewide and nationwide
|
0005| criminal records checks of each such caregiver within ninety days
|
0006| of the effective date of this act. A care provider may continue
|
0007| to employ a caregiver pending the results of the criminal records
|
0008| checks for a period not to exceed sixty days. A care provider may
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0009| accept the results of a caregiver's criminal records checks less
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0010| than one year old, provided the results are obtained from the
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0011| caregiver's previous employer pursuant to the caregiver's written
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0012| consent. A caregiver whose profession requires statewide and
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0013| nationwide criminal records checks as prerequisite for
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0014| professional licensure may disclose the results of any such
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0015| records checks to the care provider in lieu of undergoing the
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0016| records checks required by this section. A care provider that has
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0017| conducted criminal records checks within the last two years as
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0018| required in this section may use the results of such checks to
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0019| meet the requirements of this section. The costs of the criminal
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0020| records checks shall be paid by either the provider or the
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0021| caregiver.
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0022| D. Except as otherwise provided for in Subsection E of
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0023| this section, any of the following convictions disqualify an
|
0024| applicant or caregiver from employment as a caregiver:
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0025| (1) homicide;
|
0001| (2) assault or battery;
|
0002| (3) aggravated assault or aggravated battery;
|
0003| (4) kidnapping or false imprisonment;
|
0004| (5) rape, criminal sexual penetration, criminal
|
0005| sexual contact, incest or other non-consensual or forcible sexual
|
0006| acts;
|
0007| (6) domestic violence;
|
0008| (7) any crime involving adult abuse, neglect or
|
0009| financial exploitation;
|
0010| (8) any crime involving child abuse or neglect;
|
0011| (9) indecent exposure;
|
0012| (10) felony larceny, robbery, burglary or
|
0013| aggravated burglary;
|
0014| (11) felony trafficking controlled substances;
|
0015| (12) arson; or
|
0016| (13) any criminal offense involving fraud.
|
0017| E. A care provider shall not employ an applicant, or
|
0018| continue to employ a caregiver, whose criminal records reflect
|
0019| conviction of a crime specified in Subsection D of this section,
|
0020| unless the applicant or caregiver requests reconsideration and
|
0021| demonstrates to the provider that his employment poses no risk of
|
0022| harm to a care recipient or does not directly bear upon his
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0023| fitness to have responsibility for the safety and well-being of
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0024| the care recipient. To determine whether to employ an applicant
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0025| or caregiver despite an otherwise disqualifying conviction, the
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0001| care provider must consider all of the following factors:
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0002| (1) level and seriousness of the crime;
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0003| (2) date of the crime;
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0004| (3) age of the applicant or caregiver at the time
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0005| of the conviction;
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0006| (4) circumstances surrounding the commission of the
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0007| crime, if known;
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0008| (5) nexus between the applicant's or caregiver's
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0009| criminal conduct and the job duties of the position to be filled;
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0010| (6) applicant's or caregiver's prison, jail,
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0011| probation, parole, rehabilitation and employment records since the
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0012| date the crime was committed; and
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0013| (7) subsequent commission by the applicant or
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0014| caregiver of a relevant offense.
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0015| F. A care provider may refuse to employ an applicant, or
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0016| to continue to employ a caregiver, whose criminal records reflect
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0017| conviction of a crime other than those specified in Subsection D
|
0018| of this section or a felony arrest if, in the provider's
|
0019| discretion, employment or continued employment is inadvisable.
|
0020| G. If a care provider refuses to employ an applicant, or
|
0021| to continue to employ a caregiver, pursuant to Subsection E or F
|
0022| of this section, the provider shall so notify the applicant or
|
0023| caregiver, stating with specificity the convictions and arrests on
|
0024| which refusal to employ is based and identifying the agency which
|
0025| provided the records.
|
0001| H. A care provider shall afford an applicant or
|
0002| caregiver refused employment or continued employment a reasonable
|
0003| opportunity to demonstrate that the criminal records are
|
0004| inaccurate, including an opportunity to contact the agency that
|
0005| provided the records.
|
0006| I. A care provider shall maintain records evidencing
|
0007| compliance with the requirements of this section with respect to
|
0008| all applicants and caregivers employed on or after the effective
|
0009| date of this act. These records shall be subject to inspection by
|
0010| any governmental agency with regulatory jurisdiction over the
|
0011| provider, including the department of health, the state agency on
|
0012| aging, the attorney general's medicaid fraud control unit and the
|
0013| children, youth and families department. Criminal records
|
0014| maintained by the provider shall be destroyed one year after an
|
0015| applicant is rejected or a caregiver's employment is terminated,
|
0016| as applicable.
|
0017| J. All criminal records obtained pursuant to this
|
0018| section and the information contained therein are confidential.
|
0019| No criminal records obtained pursuant to this section shall be
|
0020| used for any purpose other than determining whether an applicant
|
0021| or caregiver has criminal records that disqualify him from
|
0022| employment as a caregiver. Except on court order or with the
|
0023| written consent of the applicant or caregiver, criminal records
|
0024| obtained pursuant to this section and the information contained
|
0025| therein shall not be released or otherwise disclosed to any other
|
0001| person or agency. Any person who discloses confidential records
|
0002| or information in violation of this section is guilty of a
|
0003| misdemeanor and shall be sentenced pursuant to the provisions of
|
0004| Subsection A of 31-19-1 NMSA 1978.
|
0005| K. A care provider, including its administrators and/or
|
0006| employees, is not civilly liable for a good faith decision to:
|
0007| (1) employ, not employ or terminate employment
|
0008| pursuant to this section; and
|
0009| (2) rely on the results of criminal records checks
|
0010| required by this section in making decisions or taking action
|
0011| regarding placement or other personnel decisions.
|
0012| L. Failure to comply with the requirements of this
|
0013| section are grounds for the state agency having jurisdiction of
|
0014| the care provider to impose administrative sanctions and
|
0015| penalties, including suspension or revocation of the provider's
|
0016| license and imposition of fines. This subsection neither limits
|
0017| any existing and independent sanctioning authority nor grants any
|
0018| additional sanctioning authority.
|
0019| Section 2. EMERGENCY.--It is necessary for the public peace,
|
0020| health and safety that this act take effect immediately.
|
0021| - 8 -
|
0022|
|
0023| FORTY-THIRD LEGISLATURE SB 651/a
|
0024| FIRST SESSION, 1997
|
0025|
|
0001|
|
0002| March 13, 1997
|
0003|
|
0004| Mr. President:
|
0005|
|
0006| Your JUDICIARY COMMITTEE, to whom has been referred
|
0007|
|
0008| SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
|
0009| SENATE BILL 651
|
0010|
|
0011| has had it under consideration and reports same with recommendation
|
0012| that it DO PASS, amended as follows:
|
0013|
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0014| 1. On page 1, line 24, after "includes" insert "direct care
|
0015| or".
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0016|
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0017| 2. On page 3, line 6, strike "and".
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0018|
|
0019| 3. On page 3, line 11, strike the period and insert in lieu
|
0020| thereof "; and".
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0021|
|
0022| 4. On page 3, between lines 11 and 12, insert the following
|
0023| new paragraph:
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0024|
|
0025| "(8) "volunteer service" means the performance of
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0001| work for a care provider by a person who is not financially
|
0002| compensated for that work and does not receive a stipend, and who
|
0003| assists the care provider by filling a position that would otherwise
|
0004| be held by an employee or independent contractor.".
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0005|
|
0006| 5. On page 3, line 20, strike "sixty" and insert in lieu
|
0007| thereof "one hundred".
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0008|
|
0009| 6. On page 4, line 8, strike "ninety" and insert in lieu
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0010| thereof "one hundred eighty".
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0011|
|
0012| 7. On page 4, line 11, strike "sixty" and insert in lieu
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0013| thereof "one hundred".
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0014|
|
0015| 8. On page 6, lines 17 through 22, strike Subsection F in its
|
0016| entirety and insert in lieu thereof:
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0017|
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0018|
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0019|
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0020|
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0021| "F. This section does not preclude a care facility or
|
0022| administrator or supervisory personnel from using other convictions
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0023| or information revealed by criminal records checks as a basis for
|
0024| employment or personnel placement or other personnel decisions or
|
0025| actions, including termination of employment.".
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0001|
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0002| 9. On page 8, line 11, strike "and" and insert in lieu thereof
|
0003| "or".
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0004|
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0005| 10. On page 8, line 19, after the period insert the following:
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0006|
|
0007| "Until January 1, 1998 a care provider shall not be subject to
|
0008| administrative sanctions or penalties for health facilities survey
|
0009| deficiencies or for continuing to employ a care giver 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
|
0012| for in Subsections B and C of this section.".
|
0013|
|
0014|
|
0015| Respectfully submitted,
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0016|
|
0017|
|
0018|
|
0019| __________________________________
|
0020| Fernando R. Macias, Chairman
|
0021|
|
0022|
|
0023|
|
0024| Adopted_______________________ Not Adopted_______________________
|
0025| (Chief Clerk) (Chief Clerk)
|
0001|
|
0002|
|
0003| Date ________________________
|
0004|
|
0005|
|
0006| The roll call vote was 7 For 0 Against
|
0007| Yes: 7
|
0008| No: 0
|
0009| Excused: Sanchez
|
0010| Absent: None
|
0011|
|
0012|
|
0013| S0651JU1 .118577.2/a
|
0014|
|
0015| FORTY-THIRD LEGISLATURE
|
0016| FIRST SESSION, 1997
|
0017|
|
0018|
|
0019|
|
0020| October 24, 1997
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0021|
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0022|
|
0023| SENATE FLOOR AMENDMENT number to SENATE PUBLIC AFFAIRS
|
0024| COMMITTEE SUBSTITUTE FOR SENATE BILL 651, as amended, with emergency
|
0025| clause
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0001|
|
0002| AMENDMENT sponsored by SENATOR VERNON
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0003|
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0004| 1. Strike Item No. 10 of Senate Judiciary Committee amendment
|
0005| and insert in lieu thereof the following:
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0006|
|
0007| "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 care giver 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
|
0012| for in Subsections B and C of this section.".
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0013|
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0014|
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0015|
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0016|
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0017|
|
0018| Senator L. Skip Vernon
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0019|
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0020|
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0021|
|
0022| Adopted Not Adopted
|
0023|
|
0024| (Chief Clerk) (Chief Clerk)
|
0025|
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0001|
|
0002| Date
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0003|
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0004|
|
0005| S0651FS1
|
0006| State of New Mexico
|
0007| House of Representatives
|
0008|
|
0009| FORTY-THIRD LEGISLATURE
|
0010| FIRST SESSION, 1997
|
0011|
|
0012|
|
0013| March 20, 1997
|
0014|
|
0015|
|
0016| Mr. Speaker:
|
0017|
|
0018| Your JUDICIARY COMMITTEE, to whom has been referred
|
0019|
|
0020| SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
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0021| SENATE BILL 651, as amended
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0022|
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0023| has had it under consideration and reports same with
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0024| recommendation that it DO PASS.
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0025|
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0001| Respectfully submitted,
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0002|
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0003|
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0004|
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0005|
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0006| Thomas P. Foy, Chairman
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0007|
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0008|
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0009| Adopted Not Adopted
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0010| (Chief Clerk) (Chief Clerk)
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0011|
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0012| Date
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0013|
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0014| The roll call vote was 7 For 0 Against
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0015| Yes: 7
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0016| Excused: Alwin, Luna, Mallory, Rios, Sanchez, Stewart
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0017| Absent: None
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0018|
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0019|
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0020| G:\BILLTEXT\BILLW_97\S0651
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