New Mexico Register / Volume XXXIII, Issue 20 / October 25,
2022
TITLE 8 SOCIAL SERVICES
CHAPTER
9 EARLY CHILDHOOD EDUCATION AND CARE
PART 6 GOVERNING BACKGROUND
CHECKS AND EMPLOYMENT HISTORY VERIFICATION
8.9.6.1 ISSUING
AGENCY:
Early Childhood Education and Care Department (“ECECD”)
[8.9.6.1
NMAC - N, 11/01/2022]
8.9.6.2 SCOPE: This rule has
general applicability to operators, volunteers, including student interns, employees, and prospective operators, staff
and employees, of child-care facilities, including every facility, ECECD
contractor, program receiving ECECD funding or reimbursement, or other program
that has or could have primary custody of children for twenty hours or more per
week, and direct providers of care for children including, but not limited to
the following settings: licensed and
registered child care, home visiting programs, and Family Infant Toddler (FIT)
programs.
[8.9.6.2
NMAC - N, 11/01/2022]
8.9.6.3 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. ECECD’s rule making authority for this
rule arises from Subsection E of Section 9-29-6 NMSA 1978; Subsection H of
Section 9-29-8 NMSA 1978; and Section 9-29-8.1 NMSA 1978.
[8.9.6.3
NMAC - N, 11/01/2022]
8.9.6.4 DURATION: Permanent
[8.9.6.4
NMAC - N, 11/01/2022]
8.9.6.5 EFFECTIVE
DATE:
November 1, 2022, unless a later date is cited at the end of a section.
[8.9.6.5
NMAC - N, 11/01/2022]
8.9.6.6 OBJECTIVE:
A. The purpose of
these regulations is to set out general provisions regarding background checks
and employment history verification required in settings to which these
regulations apply.
B. Background
checks are conducted in order to identify information
in applicants’ backgrounds bearing on whether they are eligible to provide
services in settings to which these regulations apply.
C. Abuse and
neglect screens of databases in New Mexico are conducted by BCU staff in order to identify those persons who pose a continuing threat
of abuse or neglect to care recipients in settings to which these regulations
apply. Applicants required to obtain
background checks pursuant to 8.9.4 NMAC and 8.9.5 NMAC will also undergo a
screen of abuse and neglect information and an inter-state criminal history
check in each State where the applicant resided during the preceding five
years.
[8.9.6.6
NMAC - N, 11/01/2022]
8.9.6.7 DEFINITIONS:
A. “Administrative review” means an
informal process of reviewing a decision that may include an informal
conference or hearing or a review of written records.
B. “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.
C. “Adult” means a person who has a
chronological age of 18 years or older, except for persons under medicaid certification as set forth in Subsection K below.
D. “Appeal” means a review of a
determination made by the BCU, which may include an administrative review or a
hearing.
E. “Applicant” means any person who is
required to obtain a background check under these rules and Section 32A-15-3
NMSA 1978.
F. “Arrest” means notice from a law
enforcement agency about an alleged violation of law.
G. “BCU” means the ECECD background check
unit.
H. “Background check” means a screen of
ECECD’s information databases, state and federal criminal records and any other
reasonably reliable information about an applicant.
I. “Care recipient” means any person under
the care of a licensee.
J. “Child” means a person who has a
chronological age of less than 18 years, and persons under applicable medicaid certification up to the age of 21 years.
K. “Conditional employment” means a period
of employment status for a new applicant prior to the BCU’s final disposition
of the applicant’s background check.
L. “Criminal history” means information
possessed by law enforcement agencies of arrests, indictments, or other formal
charges, as well as dispositions arising from these charges.
M. “Direct physical supervision” means
continuous visual contact or live video observation by a direct provider of
care who has been found eligible by a background check of an applicant during
periods when the applicant is in immediate physical proximity to care
recipients.
N. “Direct provider of care” means any
individual who, as a result of employment or,
contractual service or volunteer service has direct care responsibilities or
potential unsupervised physical access to any care recipient in the settings to
which these regulations apply.
O. “Eligibility” means the determination
that an applicant does not pose an unreasonable risk to care recipients after a
background check is conducted.
P. “Employment history” means a written
summary of the most recent three-year period of employment with names,
addresses and telephone numbers of employers, including dates of employment,
stated reasons for leaving employment, and dates of all periods of unemployment
with stated reasons for periods of unemployment, and verifying references.
Q. “Licensed” means authorized to operate
by the licensing authority by issuance of an operator’s license or
certification certificate.
R. “Licensee” means the holder of, or
applicant for, a license, certification, or registration pursuant to 8.9.4
NMAC, 8.9.5 NMAC or other program or entity within the scope of these
regulations. ECECD LICENSEE means
program or entity within the scope of these regulations.
S. “Licensing authority” means the ECECD
division having authority over the licensee.
T. “Moral turpitude” means an intentional
crime that is wanton, base, vile or depraved and contrary to the accepted rules
of morality and duties of a person within society. In addition, because of the high risk of
injury or death created by, and the universal condemnation of the act of
driving while intoxicated, a crime of moral turpitude includes a second or
subsequent conviction for driving while intoxicated or any crime involving the
use of a motor vehicle, the elements of which are substantially the same as
driving while intoxicated. The record
name of the second conviction shall not be controlling; any conviction subsequent to an initial one may be considered a second
conviction.
U. “Notice of provisional employment”
means a written notice issued to a child care center
or home applicant indicating the BCU reviewed the applicant’s fingerprint based
federal or New Mexico criminal record and made a determination that the
applicant may begin employment under direct physical supervision until
receiving background eligibility. A
notice may also indicate the applicant must receive a complete background
eligibility prior to beginning employment.
V. “Relevant conviction” means a plea, judgment or verdict of guilty, no contest, nolo contendere,
conditional plea of guilty, or any other plea that would result in a conviction
for a crime in a court of law in New Mexico or any other state. The term RELEVANT CONVICTION also includes
decrees adjudicating juveniles as serious youthful offenders or youthful
offenders, or convictions of children who are tried as adults for their
offenses. Successful or pending
completion of a conditional discharge under Section 31-20-13 (1994) NMSA 1978,
or Section 30-31-28 (1972) NMSA 1978, or a comparable provision of another
state’s law, is not a relevant conviction for purposes of these regulations,
unless or until such time as the conditional discharge is revoked or rescinded
by the issuing court. The term RELEVANT
CONVICTION does not include any of the foregoing if a court of competent
jurisdiction has overturned the conviction or adjudicated decree and no further
proceedings are pending in the case or if the applicant has received a legally
effective executive pardon for the conviction.
The burden is on the applicant to show that the applicant has a pending
or successful completion of any conditional discharge or consent decree, or
that the relevant conviction has been overturned on appeal,
or has received a legally effective pardon.
W. “Unreasonable risk” means the quantum
of risk that a reasonable person would be unwilling to take with the safety or
welfare of care recipients.
[8.9.6.7
NMAC - N, 11/01/2022]
8.9.6.8 APPLICABILITY: These regulations
apply to all licensees and direct providers of care in the following settings:
A. licensed child care homes;
B. licensed child care centers;
C. registered child care homes;
D. home visiting programs;
E. licensed before
and after school care;
F. non-licensed or
exempt after school programs participating in the at risk
component of the child and adult care food program;
G. family infant
toddler (FIT) programs;
H. ECECD
contractors, and any other programs receiving ECECD funding or reimbursement,
that:
(1) has or could have primary custody of
children for twenty hours or more per week; or
(2) will have direct contact with
children in the provision of ECECD sponsored services.
[8.9.6.8
NMAC - N, 11/01/2022]
8.9.6.9 NON-APPLICABILITY:
A. These
regulations do not apply to the following settings, except to the extent that
such a program receives funding or reimbursement from ECECD:
(1) hospitals
or infirmaries;
(2) intermediate
care facilities;
(3) children’s
psychiatric centers;
(4) home
health agencies;
(5) diagnostic
and treatment centers; and
(6) unlicensed
or unregistered child care homes.
(7) behavior
management skills development;
(8) case management services;
(9) day treatment services;
(10) residential treatment services;
(11) treatment foster care services agency staff;
(12) licensed shelter care;
(13) comprehensive community support services;
(14) AOC (administrative office of the courts)
supervised visitation and safe exchange program providers.
B. These
regulations do not apply to the following adults:
(1) treatment
foster care parents;
(2) relative
care providers who are not otherwise required to be licensed or registered;
(3) foster
grandparent volunteers; and
(4) all
other volunteers for any program or entity within the scope of these
regulations if the volunteer spends less than six hours per week at the
program, is under direct physical supervision, and is not counted in the
facility ratio.
[8.9.6.9
NMAC - N, 11/01/2022]
8.9.6.10 COMPLIANCE:
A. Compliance with
these regulations is a condition of licensure, registration, certification or renewal,
or continuation of same or participation in any other program or contract
within the scope of these regulations.
B. The
licensee is required to:
(1) submit
an electronic fingerprint submission receipt and the required forms for all
direct providers of care, household members in licensed and registered child care homes, or any staff member, employee, or
volunteer present while care recipients are present, or other adult as required
by the applicable regulations prior to the commencement of service, whether
employment or, contractual, or volunteer.
In the case of a licensed child care home and a
registered home, the licensee must submit an electronic fingerprint submission
receipt and the required forms for new household members or for any adult who
is required to obtain a background check pursuant to 8.9.4 NMAC or 8.9.5 NMAC
as applicable. However, in the case of a
registered family child care food-only home, all
household members are only required to undergo a criminal history and child
abuse and neglect screening.
(2) Applicants
required to obtain background checks pursuant to 8.9.4 NMAC and 8.9.5 NMAC must
indicate states where they resided during the preceding five years and obtain
the following:
(a) a
screen of abuse and neglect information in each state where the applicant
resided during the preceding five years; and
(b) an
inter-state criminal history check in each state where a new applicant resided
during the preceding five years. An
inter-state criminal history check is not required if a new applicant has
resided in a state that participates in the federal bureau of investigation’s
national fingerprint file. All existing staff
hired after October 1, 2016, must undergo an inter-state criminal history check
in each state where the applicant resided during the preceding five years at
the time of application. An inter-state criminal history check is not required if an
applicant has resided in a state that participates in the federal bureau of
investigation’s national fingerprint file.
(3) Verify
the employment history of any prospective direct provider of care by 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 or child care
homes licensed for six or fewer children.
(4) submit
an adult household member written statement form for each adult household
member in a registered family child care food-only home setting in order to
conduct criminal history and child abuse and neglect screens on such household
members; an adult household member is an adult living in the household or an
adult that spends a significant amount of time in the home; the licensee must
submit the required forms for new adult household members pursuant to 8.9.5
NMAC.
(5) provide
such other information BCU staff determines to be necessary; and
(6) maintain
documentation of all applications, correspondence and eligibility relating to
the background checks required; in the event that the
licensee does not have a copy of an applicant’s eligibility documentation and
upon receipt of a written request for a copy, the BCU may issue duplicate
eligibility documentation to the original licensee provided that the request
for duplicate eligibility documentation is made within one year of the
applicant’s eligibility date.
C. If there is a
need for any further information from an applicant at any stage of the process,
the BCU shall request the information in writing from the applicant. If the BCU does not receive the requested
information within fifteen calendar days of the date of the request, the BCU
shall deny the application and send a notice of background check denial.
D. Any person who
knowingly makes a materially false statement in connection with these
requirements will be denied eligibility.
[8.9.6.10
NMAC - N, 11/01/2022]
8.9.6.11 COMPLIANCE
EXCEPTIONS:
A. An applicant may
not begin providing services prior to obtaining background check eligibility
unless all of the following requirements are met:
(1) the
ECECD licensee may not be operating under a corrective action plan (childcare),
sanctions, or other form of disciplinary action;
(2) the
licensee or applicant shall send the BCU a completed application form and an
electronic fingerprint submission receipt prior to employment;
(3) until
receiving background eligibility, the applicant shall at all
times be under direct physical supervision. See next paragraph for standards regarding
applicants required to obtain a background check pursuant to 8.9.4 NMAC or
8.9.5 NMAC;
(4) a
licensee or applicant required to obtain a background check pursuant to 8.9.4
NMAC or 8.9.5 NMAC must receive either a notice of provisional employment or
background check eligibility prior to beginning employment. Applicants working after receipt of a notice
of provisional employment shall at all times be under
direct physical supervision until receiving background check eligibility. Upon completion of Paragraph 2 of this
subsection, a notice of provisional employment decision will be provided to the
child care center or home within five days unless the
BCU determines there is good cause shown for an extension; and
(5) no
more than 45 days shall have passed since the date of the initial application
unless the BCU documents good cause shown for an extension.
B. With the exception of the provision under 8.9.4.19 NMAC and
8.9.5.11 NMAC, if a direct provider of care has a break in employment or
transfers employment more than 180 days after the date of an eligibility letter
from the BCU, the direct provider of care must re-comply with 8.9.6.10
NMAC. A direct provider of care may
transfer employment, as permitted by 8.9.4.19 NMAC and 8.9.5.11 NMAC, or for a
period of 180 days after the date of an eligibility letter from the BCU without
complying with 8.9.6.10 NMAC only if the direct provider of care submits a
preliminary application that meets the following conditions:
(1) the
direct provider of care submits a statement swearing under penalty of perjury
that he or she has not been arrested or charged with any crimes, has not been
an alleged perpetrator of abuse or neglect and has not been a respondent in a
domestic violence petition;
(2) the
direct provider of care submits an application that describes the prior and
subsequent places of employment, registration or
certification with sufficient detail to allow the BCU to determine if further
background checks or a new application is necessary; and
(3) the
BCU determines within 15 days that the direct provider of care’s prior background
check is sufficient for the employment or position the direct provider of care
is going to take.
[8.9.6.11
NMAC - N, 11/01/2022]
8.9.6.12 PROHIBITIONS:
A. Any ECECD
licensee who violates these regulations is subject to revocation, suspension,
sanctions, denial of licensure, certification, or registration or termination
of participation in any other program within the scope of these regulations.
B. Licensure,
certification, registration or participation in any
other program within the scope of these regulations is subject to receipt by
the licensing authority of a satisfactory background check for the licensee or
the licensee’s administrator.
C. Except as provided
in 8.9.6.13 NMAC below, licensure, certification, registration
or participation in any other program within the scope of these regulations may
not be granted by the licensing authority if a background check of the licensee
or the licensee’s administrator reveals an unreasonable risk.
D. A licensee may
not retain employment, volunteer service or contract with any direct provider
of care for whom a background check reveals an unreasonable risk. The BCU shall deliver one copy of the notice
of unreasonable risk to the facility or program by U.S. mail, facsimile
transmission, secure (or encrypted) e-mail or hand delivery, and to the
licensing authority by facsimile transmission, secure (or encrypted) e-mail or
hand delivery.
E. A licensee shall
be in violation of these regulations if it retains a direct provider of care
for more than ten working days following the issuing of a notice of background
check denial for failure to respond by the BCU.
F. A licensee shall
be in violation of these regulations if it retains any direct provider of care
inconsistent with Subsection A of 8.9.6.11 NMAC.
G. 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 information
received from any source including the direct provider of care, indicates the
provider of care poses an unreasonable risk to care recipients.
H. Any firm,
person, corporation, individual or other entity that violates this section
shall be subject to appropriate sanctions up to and including immediate
emergency revocation of license or registration pursuant to the regulations
applicable to that entity or termination of participation in any other program
within the scope of these regulations.
[8.9.6.12
NMAC - N, 11/01/2022]
8.9.6.13 ARRESTS,
CONVICTIONS AND REFERRALS:
A. For the purpose of these regulations, the following
information shall result in a conclusion that the applicant is an unreasonable
risk:
(1) a
conviction for a felony, or a misdemeanor involving moral turpitude, and the
criminal conviction directly relates to whether the applicant can provide a
safe, responsible and morally positive setting for care recipients;
(2) a
conviction for a felony, or a misdemeanor involving moral turpitude, and the
criminal conviction does not directly relate to whether the applicant can
provide a safe, responsible and morally positive setting for care recipients if
the department determines that the applicant so convicted has not been
sufficiently rehabilitated;
(3) a
conviction, regardless of the degree of the crime or the date of the
conviction, of trafficking in controlled substances, criminal sexual
penetration or related sexual offenses or child abuse;
(4) a
substantiated referral, regardless of the date, for sexual abuse or for a
substantiation of abuse or neglect relating to a failure to protect against
sexual abuse;
(5) the
applicant’s child is in New Mexico’s Children, Youth, and Families Department
(CYFD) or another state’s custody; or
(6) a
registration, or a requirement to be registered, on a state sex offender
registry or repository or the national sex offender registry established under
the Adam Walsh Child Protection and Safety Act of 2006.
B. A disqualifying
conviction may be proven by:
(1) a
copy of the judgment of conviction from the court;
(2) a
copy of a plea agreement filed in court in which a defendant admits guilt;
(3) a
copy of a report from the federal bureau of investigation, criminal information
services division, or the national criminal information center, indicating a conviction;
(4) a
copy of a report from the state of New Mexico, department of public safety, or
any other agency of any state or the federal government indicating a conviction;
(5) any
writing by the applicant indicating that such person has been convicted of the
disqualifying offense, provided, however, that if this is the sole basis for
denial, the applicant shall be given an opportunity to show that the applicant
has successfully completed or is pending completion of a conditional discharge
for the disqualifying conviction.
C. If a background
check shows pending charges for a felony offense, any misdemeanor offense
involving domestic violence, child abuse, any other misdemeanor offense of
moral turpitude, or an arrest but no disposition for any such crime, there
shall be a determination of unreasonable risk if a conviction as charged would
result in a determination of unreasonable risk.
D. If a background
check shows a pending CYFD child protective services referral or any other investigation
of abuse or neglect by ECECD, CYFD, or any other state or federal agency with
authority to investigate, there shall be a determination of unreasonable risk.
E. If a background
check shows that an applicant has an outstanding warrant, there shall be a
determination of unreasonable risk.
[8.9.6.13
NMAC - N, 11/01/2022]
8.9.6.14 UNREASONABLE
RISK:
A. The BCU may, in
its discretion, use all reasonably reliable information about an applicant and
weigh the evidence about an applicant to determine whether the applicant poses
an unreasonable risk to care recipients.
The BCU may also consult with legal staff, treatment, assessment
or other professionals in the process of determining whether the cumulative
weight of credible evidence establishes unreasonable risk.
B. In determining
whether an applicant poses an unreasonable risk, the BCU need not limit its
reliance on formal convictions or substantiated referrals, but nonetheless must
only rely on evidence with indicia of reliability such as:
(1) reliable
disclosures by the applicant or a victim of abuse or neglect;
(2) domestic
violence orders that allowed an applicant notice and opportunity to be heard
and that prohibits or prohibited them from injuring, harassing or contacting another;
(3) circumstances
indicating the applicant is or has been a victim of domestic violence;
(4) child
or adult protection investigative evidence that indicates a likelihood that an
applicant engaged in inappropriate conduct but there were reasons other than
the credibility of the evidence to not substantiate; or
(5) any
other evidence with similar indicia of reliability.
[8.9.6.14
NMAC - N, 11/01/2022]
8.9.6.15 REHABILITATION
PETITION:
Any applicant whom the BCU concludes is an unreasonable risk on any
basis other than those described at Paragraphs (1), (3), (4), (5), or (6) of
Subsection A of 8.9.6.13 NMAC, may submit to the BCU a rehabilitation petition
describing with specificity all information that tends to demonstrate that the
applicant is not an unreasonable risk.
The petition may include, but need not be limited to, a description of
what actions the applicant has taken subsequent to any
events revealed by the background check to reduce the risk that the same or a
similar circumstance will recur.
[8.9.6.15
NMAC - N, 11/01/2022]
8.9.6.16 ELIGIBILITY
SUSPENSIONS, REINSTATEMENTS AND REVOCATIONS:
A. An applicant’s
background check eligibility may be suspended for the following:
(1) an arrest or criminal charge for any felony offense, any
misdemeanor offense involving domestic violence, child abuse or any other
misdemeanor offense of moral turpitude if a conviction as charged would result
in a determination of unreasonable risk;
(2) a
pending CYFD child protective services referral or any other investigation of
abuse or neglect by ECECD, CYFD, or any other state or federal agency with
authority to investigate allegations of abuse or neglect;
(3) an
outstanding warrant; or
(4) any
other reason that creates an unreasonable risk determination pursuant to these
regulations.
B. It is the duty
of the administrator of a facility or the licensee and the background check
eligibility holder, upon learning of any of the above, to notify the licensing
authority immediately. Failure to
immediately notify the licensing authority may result in the revocation of background
check eligibility.
C. A suspension of
background check eligibility shall have the same effect as a determination of
unreasonable risk until the matter is resolved and eligibility is affirmatively
reinstated by the BCU.
D. Background check
eligibility may be reinstated or revoked as follows:
(1) If the
applicant can provide information relating to the disqualifying criminal charge
that would show that a criminal conviction as charged would not lead to an
unreasonable risk;
(2) If the
matter causing the suspension is resolved within six months of the suspension,
the applicant may provide documentation to the BCU showing how the matter was
resolved and requesting reinstatement of background check eligibility. After review, the BCU may reinstate
background check eligibility or may revoke eligibility. If, the applicant’s eligibility is revoked,
the applicant may appeal the revocation.
(3) If the
matter causing the suspension is resolved after six months of the suspension,
the applicant may reapply for clearance for the same licensee by submitting an
electronic fingerprint submission receipt and the required forms. After review, the BCU may reinstate
background check eligibility or may revoke eligibility. If the applicant’s eligibility is revoked,
the applicant may appeal the revocation.
[8.9.6.16
NMAC - N, 11/01/2022]
8.9.6.17 APPEAL
RIGHTS:
A. Denials: Any applicant who is found ineligible after
completion of background check may request an administrative review from
ECECD. The request for an administrative
review shall be in writing and the applicant shall cause the BCU to receive it
within 15 days of the date of the BCU’s written notice of a determination of
unreasonable risk. If the request is mailed,
three days are added after the period would otherwise expire. The administrative review shall be completed
by a review of the record by a hearing officer designated by the cabinet
secretary. The hearing officer’s review
is limited to:
(1) whether the
BCU’s conclusion of unreasonable risk is supported by any section of these
regulations; and
(2) whether the
applicant has been erroneously identified as a person with a relevant
conviction or substantiated referral.
The review will be completed on the record presented to the hearing officer
and includes the applicant’s written request for an administrative review and
other relevant evidence provided by the applicant. The hearing officer conducts the
administrative review and submits a recommendation to the cabinet secretary no
later than 60 days after the date the request for administrative review is
received unless ECECD and the applicant agree otherwise.
B. Suspensions and
revocations: A previously cleared
applicant whose eligibility has been suspended or revoked may appeal that decision
to ECECD and shall be entitled to a hearing pursuant to ECECD’s identified
administrative hearing regulations. The request for appeal shall be in writing
and the applicant shall cause the BCU to receive it within 15 days of the date
of the BCU’s written notice of suspension.
If the request is mailed, three days are added after the period would
otherwise expire.
[8.9.6.17
NMAC - N, 11/01/2022]
HISTORY OF 8.9.6 NMAC: [RESERVED]