NEW MEXICO REGISTER / VOLUME XII, ISSUE NUMBER 15/ AUGUST 15, 2001

 

TITLE 8  SOCIAL SERVICES

CHAPTER 8        CHILDREN, YOUTH AND FAMILIES GENERAL PROVISIONS

PART 3                GOVERNING CRIMINAL RECORDS CHECKS AND EMPLOYMENT HISTORY VERIFICATION

 

8.8.3.1                  ISSUING AGENCY: Children, Youth and Families Department

[8.8.3.1 NMAC – N, 07/30/01]

 

8.8.3.2                  SCOPE: This rule has general applicability to Licensees and direct providers of care for children in the following settings: Children’s Behavioral Health Services and licensed and registered child care, including shelter care.

[8.8.3.2 NMAC – N, 07/30/01]

 

8.8.3.3                  STATUTORY AUTHORITY: The statutory authority for these regulations is contained in the Criminal Offender Employment Act, Section 28-2-1 to 28-2-6 NMSA and in the New Mexico Children’s and Juvenile Facility Criminal Records Screening Act, Section 32A-15-1 to 32A-15-4 NMSA 1978 Amended.

[8.8.3.3 NMAC – N, 07/30/01]

 

8.8.3.4                  DURATION: Permanent

[8.8.3.4 NMAC – N, 07/30/01]

 

8.8.3.5                  EFFECTIVE DATE:  July 30, 2001.

[8.8.3.5 NMAC – N, 07/30/01]

 

8.8.3.6                  OBJECTIVE:

A.           The purpose of these regulations is to set out general provisions regarding the criminal records checks and employment history verification required by the Prevention & Intervention Division of the Children, Youth and Families Department.

B.           Criminal records checks are made to identify those adults who have relevant felony and/or misdemeanor convictions and/or arrests as defined in these regulations that operate as a disqualification to provide services to children.

[8.8.3.6 NMAC – N, 07/30/01]

 

8.8.3.7                  DEFINITIONS:

A.           ALFORD PLEA means a guilty plea entered by a defendant who simultaneously maintains his/her innocence and for purposes of these regulations is equivalent to a conviction.

B.           ADMINISTRATIVE REVIEW means an informal process of reviewing a decision that may include an informal conference and/or hearing and/or a review of written records.

C.           ADMINISTRATOR means the adult in charge of the day-to-day operation of a facility. The Administrator may be the licensee or an authorized representative of the licensee.

D.           ADULT means a person who has a chronological age of 18 years or older.

E.           APPEAL means a review of a determination made by the Children, Youth and Families Department, which may include an administrative review.

F.           ARREST means notice from a law enforcement agency about an alleged violation of law.

G.           CARE RECIPIENT means any person under the care of a licensee.

H.           CHILD means a person who has a chronological age of less than 18 years.

I.            CONDITIONAL EMPLOYMENT means a period of employment which is contingent upon receipt of notice from the Children, Youth and Families Department that the direct provider of care’s criminal records check indicates no relevant conviction and/or the period of employment allowed during which the  direct provider of care is responsible for providing the disposition of an arrest record.

J.            CRIMINAL HISTORY means information possessed by law enforcement agencies of an adults arrests, indictments, or other formal charges, as well as dispositions arising from these charges.

K.           CRIMINAL RECORDS CHECK means the process of submitting FBI approved fingerprint cards for the purpose of determining whether or not an applicant has State or Federal convictions on record and, when applicable, obtaining a criminal history. It may also refer to a request made by the Children, Youth and Families Department for a criminal history contained in local law enforcement records.

L.           CRIMINAL RECORDS CLEARANCE means that the Children, Youth and Families Department has made a determination, based on the criminal records checks performed, that no relevant conviction exists to operate as a bar to employment.

M.          DIRECT, PHYSICAL SUPERVISION means continuous visual contact or live video observation by a cleared direct provider of care of a non-cleared direct provider of care during periods when the non-cleared direct provider of care is in immediate physical contact with care recipients. This requirement applies only to settings licensed by Children’s Behavioral Health Services.

N.           DIRECT PROVIDER OF CARE means any adult who, as a result of employment, contractual service or volunteer service has direct care or routine and unsupervised physical access to any care recipient and is required to obtain a criminal records check pursuant to these or other applicable regulations.

O.           DISPOSITION means the ruling, sentencing or other final settlement of a criminal matter.

P.           EMPLOYMENT HISTORY means a written summary of the most recent three year period of employment with names, addresses and telephone numbers of employers with stated reasons for leaving employment and all periods of unemployment with stated reasons for periods of unemployment, and verifying references.

Q.           LICENSEE means the holder of, or applicant for, a license, certification, or registration pursuant to 7.20.11 NMAC, 8.16.2 NMAC, 7.8.3 NMAC; 8.17.2 NMAC.

R.           LICENSING AUTHORITY means the Children, Youth and Families Department.

S.            NOLO CONTENDERE means a plea of no contest. For the purposes of these regulations, a nolo contendere is equivalent to a conviction.

T.           PENDING CHARGES means charges that have been filed and a court has not yet ruled.

U.           RELATIVE CARE PROVIDER: A direct provider of care for children who are related to him/her within the third degree of consanguinity.

V.           RELEVANT CONVICTION means a plea, judgment or verdict of guilty or a conviction following a plea of nolo contendere, conditional plea of guilty or nolo contendere, or an Alford plea that is considered grounds for disqualification for employment under these regulations.

[8.8.3.7 NMAC – N, 07/30/01]

 

8.8.3.8                  APPLICABILITY:   These regulations apply to all Licensees and direct providers of care in the following settings:

A.           Behavior Management Skills Development;

B.           Care Coordination Service;

              C.           Group Home Service;

D.           Home-Based Family-Centered Casework or Treatment;

E.           Day Treatment;

F.           Residential Treatment;

G.           Treatment Foster Care Services Agency Staff;

H.           Licensed Child Care Homes;

I.            Licensed Child Care Centers;

J.            Registered Child Care Homes;

              K.           Licensed Shelter Care;

L.           Licensed Before And After School Care.

[8.8.3.8 NMAC – N, 07/30/01]

 

8.8.3.9                  NON-APPLICABILITY:

A.           These regulations do not apply to the following settings:

                    (1)     Hospitals or Infirmaries;

                    (2)     Intermediate Care Facilities;

                    (3)     Children’s Psychiatric Centers;

                    (4)     Home Health Agencies;

                    (5)     Diagnostic and Treatment Centers;

                    (6)     Unlicensed and/or unregistered Child Care Homes

B.           These regulations do not apply to the following adults:

                    (1)     Treatment Foster Care Parents;

                    (2)     Relative Care Providers;

                    (3)     Non-Caregiver Adults Residing in Registered Child Care Homes;

                    (4)     Foster Grandparent volunteers;

                    (5)     Screened and monitored volunteers of official programs, such as work/study students, providing the program is waived by the Licensing Authority from the criminal records check requirement;

                    (6)     Volunteers working less than eight (8) hours per week.

[8.8.3.9 NMAC – N, 07/30/01]

 

8.8.3.10                COMPLIANCE:

A.           Compliance with these regulations is a condition of licensure, registration, certification and/or renewal, and/or continuation of same.

B.           The Licensee is required to:

                    (1)     Submit two FBI-approved fingerprint cards for all direct providers of care within five working days of commencement of service, whether employment, contractual, or volunteer.   EXCEPTION: In the case of licensed child care homes, the Licensee must submit fingerprint cards, within five working days, for any adult who resides in the home or any persons residing in the home who reaches 18 years of age.

                    (2)     Submit the FBI-approved fingerprint cards to CYFD along with the specified fee.

                    (3)    Verify the employment history of any potential direct provider of care. The verification shall include contacting references and prior employers/agencies to elicit information regarding the reason for leaving prior employment or service. The verification shall be documented and available for review by the Licensing Authority.    EXCEPTION: Verification of employment history is not required for registered home providers, child care homes licensed for six (6) or fewer children, or relative care providers.

                    (4)     In settings licensed by Children’s Behavioral Health Services, provide for direct physical supervision of direct providers of care who have not received a criminal records clearance from the Children, Youth and Families Department.

[8.8.3.10 NMAC – N, 07/30/01]

 

8.8.3.11                COMPLIANCE EXCEPTIONS:

A.           A direct provider of care is not required to undergo an additional criminal records check if he/she begins employment, contractual services, or volunteer service with another Licensee within one calendar year of departure from employment, contract, or volunteer service with a prior Licensee. The direct provider of care is responsible for providing proof of his/her prior criminal records check clearance.   The direct provider of care must certify that he/she has not been arrested or convicted of any offense during the interim period.  EXCEPTION: If a direct provider of care is to be employed, contracted or volunteering in a setting licensed by Children’s Behavior Health Services, he/she is not required to undergo an additional criminal records check if he/she began employment, contractual services, or volunteer service with another Licensee within 180 days of departure from a prior Licensee.

B.           If a direct provider of care who has not resided in the United States for a minimum of five years is employed, contracted or volunteering in a setting licensed by Children’s Behavior Health Services, he/she must provide proof of criminal records clearance from his/her country of origin.

[8.8.3.11 NMAC – N, 07/30/01]

 

8.8.3.12                PROHIBITIONS:

A.           Any Licensee who violates these regulations may be subject to revocation, suspension, sanctions, or denial of licensure, certification, or registration.

B.           Licensure, certification, or registration is subject to receipt by the Licensing Authority of a criminal records clearance for the Licensee and/or the Licensee’s Administrator.

C.           Licensure, certification or registration may not be granted by the Licensing Authority if a criminal records check of the Licensee and/or the Licensee’s Administrator reveals a relevant conviction.

D.           Licensure, certification, or registration may not be granted by the Licensing Authority if a screen from the Protective Services Division or an employment history verification of the Licensee and/or the Licensee’s Administrator reveals information which indicates abuse or neglect of children.

E.           A Licensee may not retain employment, volunteer service or contract with any direct provider of care:

                    (1)     For whom a criminal records check reveals a relevant conviction;

                    (2)     For whom an employment history verification reveals evidence which indicates that a potential for the abuse or neglect of children exists.

F.           A Licensee shall be in violation of these regulations if it retains a direct provider of care for more than fifteen working days following the mailing of a notice verifying relevant convictions by the Licensing Authority. The notice shall be mailed certified return receipt requested.

G.           A Licensee shall be in violation of these regulations if it retains any direct provider of care beyond 180 days for whom a criminal records check clearance has not been received. At the discretion of the Children, Youth and Families Department, this time frame may be extended.

H.           A Licensee shall be in violation of these regulations if it hires, contracts with, uses in volunteer service, or retains any direct provider of care for whom an employment history verification reveals information which indicates the abuse or neglect of children.

[8.8.3.12 NMAC – N, 07/30/01]

 

8.8.3.13                CONVICTIONS

A.           For the purpose of these regulations, the following convictions shall disqualify a person for a license or as a  registered child care provider:

                   (1)     Child abuse and/or neglect;

                   (2)     family or domestic abuse or violence;

                   (3)     any crime against a child, including, but not limited to, child pornography, false imprisonment, kidnapping, endangerment of a minor, contributing to the delinquency of a minor;

                   (4)     rape, criminal sexual penetration, criminal sexual contact, incest or other non-consensual or forcible sexual acts;

                   (5)     any crime involving adult abuse, neglect or financial exploitation;

                   (6)     indecent exposure;

                   (7)     felony larceny, robbery, burglary or aggravated burglary;

                   (8)     felony trafficking of controlled substances;

                   (9)     arson;

                   (10)     any criminal offense involving fraud; or

                   (11)     any crime involving moral turpitude, including but not limited to, prostitution, solicitation, possession of controlled substances, minor in possession of alcohol, driving while intoxicated or driving under the influence, both felony or misdemeanor, petty theft and any other offense that a reasonable person believes would impact a person’s ability to provide a safe setting for children.

B.           For a person with an arrest or conviction for any offense not listed in subsection A, the provisions of the Criminal Offender Employment Act control.  NMSA 1978, 28-2-1 through 28-2-6, as amended.  Any person in this category must demonstrate that they have remained free of any arrest, probation violation, parole violation or conviction for a period of three consecutive years, and that the person is able to provide child care services in a safe manner.

C.           Any person who applies for licensed or registered status shall also submit his/her name and any aliases for a child abuse and neglect screen.  Any person who has a substantiated adult or child abuse or neglect case shall be prohibited from providing any service related to these regulations.

D.           Any person and all employees who apply for the renewal of their license must certify that they have not been arrested or convicted of an offense for the interim period of the date of expiration of the license to the date of request for renewal.  If at any time during the license or registration period, any person is arrested or convicted of any offense shall report all of the information to the Children, Youth and Families Department within 24 hours.  Failure to report any arrest or conviction is grounds for immediate revocation of the license or registered status.

E.           Any person who is denied the privilege of providing child care services may request a review pursuant to 8.8.3.14.

[8.8.3.13 NMAC – N, 07/30/01]

 

8.8.3.14                APPEAL RIGHTS:

A.           Any Licensee who is denied licensure, certification, or registration or is sanctioned pursuant to these regulations may appeal that decision to the Children, Youth and Families Department.

B.           Any direct provider of care who is disqualified from service due to a violation of 8.8.3.13 B, C or D may request a hearing from the Children, Youth and Families Department.  The request for hearing shall be made as soon as possible, but not less than fifteen days from notice.

[8.8.3.14 NMAC – N, 07/30/01]

 

HISTORY OF 8.8.3 NMAC:

HED 85-6 (HSD), Regulations Governing Criminal Records Check And Employment History Of Licensees And Staff Of Child Care Facilities, 08/30/85.

 

HISTORY OF REPEALED MATERIAL:

HED 85-6 (HSD), Regulations Governing Criminal Records Check And Employment History Of Licensees And Staff Of Child Care Facilities - Repealed, 07/30/01