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 adult’s 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