New Mexico Register / Volume XXXV,
Issue 22 / November 19, 2024
TITLE 8 SOCIAL SERVICES
CHAPTER
8 CHILDREN, YOUTH AND FAMILIES
GENERAL PROVISIONS
PART 3 GOVERNING BACKGROUND CHECKS AND EMPLOYMENT HISTORY
VERIFICATION
8.8.3.1 ISSUING AGENCY: Children, Youth and Families Department
[8.8.3.1
NMAC - Rp, 8.8.3.1 NMAC, 11/20/2024]
8.8.3.2 SCOPE: This rule applies to CYFD-contracted, direct care providers
and their employees, sub-contractors, volunteers, and student interns. This
rule applies to all operators, employees, and volunteers; and prospective
operators, employees, and volunteers of all CYFD-contracted programs and
facilities that have primary custody of children for 20 hours or more per week,
including juvenile treatment facilities.
[8.8.3.2
NMAC - Rp, 8.8.3.2 NMAC, 11/20/2024]
8.8.3.3 STATUTORY
AUTHORITY: The statutory authority for these rules is contained in the
Criminal Offender Employment Act Section 28-2-1 NMSA 1978 to 28-2-6 NMSA 1978
and in the New Mexico Children’s and Juvenile Facility Criminal Records
Screening Act Section 32A-15-1 NMSA 1978 to 32A-15-4 NMSA 1978.
[8.8.3.3
NMAC - Rp, 8.8.3.3 NMAC, 11/20/2024]
8.8.3.4 DURATION: Permanent
[8.8.3.4
NMAC - Rp, 8.8.3.4 NMAC, 11/20/2024]
8.8.3.5 EFFECTIVE DATE: November 20, 2024, unless a later date is cited at the end
of a section.
[8.8.3.5
NMAC - Rp, 8.8.3.5 NMAC, 11/20/2024]
8.8.3.6 OBJECTIVE:
A. The purpose of these
rules is to set out general provisions regarding background checks and
employment history verification required in settings to which these rules
apply.
B. Background
checks are conducted to identify information in applicants’ backgrounds bearing
on whether they are eligible to provide services in settings to which these
rules apply.
C. Abuse and
neglect screens of databases in New Mexico are conducted by CYFD Background
Check Unit (BCU) employees to identify those persons who pose a threat of abuse
or neglect to care recipients in settings to which these rules apply.
[8.8.3.6
NMAC - Rp, 8.8.3.6 NMAC, 11/20/2024]
A. “Administrative
Review” means an informal process of reviewing a decision that may include
an informal conference, hearing, or a review of written records.
B. “Administrator”
means the manager in charge of the day-to-day operation of a facility. The
administrator may be the licensee or an authorized representative of the
licensee and be at least 18 years of age.
C. “Adult”
means a person who has a chronological age of 18 years or older, except for
persons under Medicaid certification up to the age of 21.
D. “Appeal”
means a review of a determination made by the BCU, which may include a record
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. “Background
Check” means a screen of CYFD’s information databases, state and federal
criminal records, and any other reasonably reliable information about an
applicant.
H. “Care
Recipient” means any person under the care of a licensee.
I. “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.
J. “Criminal
History” means information possessed by law enforcement agencies of
arrests, indictments, or other formal charges, as well as dispositions arising
from these charges.
L. “Direct
Care Provider” means any individual who, as a result of
employment, contractual service, or volunteer service (including student
interns) has direct care responsibilities or potential unsupervised physical or
virtual access to any child or care recipient in the settings to which these
rules apply.
M. “Eligibility”
means the determination that an applicant does not pose an unreasonable risk to
care recipients after a background check is conducted.
N. “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.
O. “Licensed”
means authorized to operate by the licensing authority by issuance of an
operator’s license or certification certificate.
P. “Licensee”
means the holder of, or applicant for, a license, certification, or
registration pursuant to 7.20.11 NMAC, 7.20.12 NMAC, 7.8.3 NMAC, or other
program or entity within the scope of these rules.
Q. “Licensing
Authority” means CYFD or entity having authority over the licensee.
R. “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 NMSA 1978, or Section 30-31-28
NMSA 1978, or a comparable provision of another state’s law, is not a relevant
conviction for purposes of these rules, 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.
S. “Unreasonable Risk” means the level of risk
that a reasonable person would be unwilling to take with the safety or welfare
of care recipients.
[8.8.3.7 NMAC - Rp, 8.8.3.7 NMAC,
11/20/2024]
8.8.3.8 APPLICABILITY: These rules apply to all licensees and direct care
providers in the following settings:
A. behavior
management skills development;
B. case
management services;
C. group
home services;
D. day
treatment services;
E. residential
treatment services;
F. treatment
foster care services agencies;
G. licensed
shelter care;
H. comprehensive
community support services;
I. contractors
and any programs or facilities receiving CYFD funding or reimbursement; and
J. supervised
visitation and safe exchange programs.
[8.8.3.8 NMAC - Rp, 8.8.3.8 NMAC,
11/20/2024]
A. These
rules do not apply to the following settings, except when otherwise required by
applicable certification requirements for child and adolescent behavioral
health services 7.20.11 NMAC or to the extent that such a program receives
funding or reimbursement from CYFD:
(1) hospitals or infirmaries;
(2) intermediate care facilities;
(3) children’s psychiatric centers;
(4) home health agencies;
(5) diagnostic and treatment centers; and
(6) childcare centers and homes.
B. These
rules 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 rules 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.
[8.8.3.9 NMAC - Rp, 8.8.3.9 NMAC,
11/20/2024]
A. Compliance with these rules 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 rules.
B. The licensee is required to:
(1) submit an electronic fingerprint
submission receipt and the required forms for all direct care providers, or any
employee, contractor, volunteer, or student intern present while care
recipients are present, or other adult as required by the applicable rules
prior to the commencement of service, whether as employee, contractor, or
volunteer;
(2) verify the employment history of any
prospective direct care provider 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;
(3) provide such other information BCU
employees determine to be necessary; and
(4) maintain documentation of all
applications, correspondences, and eligibility relating to the required
background checks; 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 15 calendar days of the date of the
request, the BCU shall deny the application and send a notice of background
check denial for failure to respond.
D. Any person who knowingly makes a
materially false statement in connection with these requirements will be denied
eligibility.
[8.8.3.10 NMAC - Rp, 8.8.3.10 NMAC,
11/20/2024]
8.8.3.11 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 licensee shall send the BCU a
completed application form and an electronic fingerprint submission receipt;
(2) until receiving background
eligibility, the applicant shall at all times be under
direct, physical supervision; and
(3) 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. If
a direct care provider has a break in employment or transfers employment more
than 180 days after the date of an eligibility letter from the BCU, the direct
care provider must re-comply with 8.8.3.10 NMAC. A direct care provider may
transfer employment for a period of 180 days after the date of an eligibility
letter from the BCU without complying with 8.8.3.10 NMAC only if the direct
care provider submits a preliminary application that meets the following
conditions:
(2) the direct care provider submits an
application that describes the prior and subsequent places of employment and
their 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 care provider’s prior background check is sufficient for the
employment or position the direct care provider is going to take.
[8.8.3.11 NMAC - Rp, 8.8.3.11 NMAC,
11/20/2024]
8.8.3.12 PROHIBITIONS:
A. Any CYFD
licensee who violates these rules 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 rules.
B. Licensure,
certification, registration, or participation in any other program within the
scope of these rules 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 8.8.3.13 NMAC, licensure, certification, registration, or
participation in any other program within the scope of these rules 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 care
provider 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 and to the licensing authority
by facsimile transmission, e-mail, or hand delivery.
E. A licensee shall
be in violation of these rules if it retains a direct care provider for more
than ten working days following the mailing of a notice of background check
denial for failure to respond by the BCU.
F. A licensee shall
be in violation of these rules if it retains any direct care provider
inconsistent with Subsection A of 8.8.3.11 NMAC.
G. A licensee shall
be in violation of these rules if it hires, contracts with, uses in volunteer
service, or retains any direct care provider for whom information received from
any source including the direct care provider, indicates the provider 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 rules
applicable to that entity or termination of participation in any other program
within the scope of these rules.
[8.8.3.12
NMAC - Rp, 8.8.3.12 NMAC, 11/20/2024]
8.8.3.13 ARRESTS, CONVICTIONS AND
REFERRALS:
A. For the purpose of these rules, the following information
shall result in a conclusion that the applicant is an unreasonable risk:
(1) a conviction for a felony 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, regardless of the
degree of the crime or the date of the conviction, of human trafficking,
criminal sexual penetration or related sexual offenses, or child abuse;
(3) a substantiated referral, regardless
of the date, for sexual abuse;
(4) the applicant’s child is currently in
CYFD’s or another state’s custody; or
(5) 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; or
(5) any writing about the applicant
indicating that such person has been convicted of the disqualifying offense,
provided; however, if that is potentially the sole basis for denial, the
applicant shall be given an opportunity to show that they have successfully
completed or are pending completion of a conditional discharge for the
disqualifying conviction.
C. If a background
check shows pending charges for a felony offense, regardless of the degree of
the crime, of human trafficking, criminal sexual penetration or related sexual
offenses, or child abuse; or an arrest but no disposition for any felony
offense, 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 child protective services referral or any other CYFD
investigation of abuse or neglect, 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.
[8.8.3.13
NMAC - Rp, 8.8.3.13 NMAC, 11/20/2024]
8.8.3.14 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 the
office of general counsel, 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 indications of reliability such as:
(1) reliable disclosures by the applicant
or a victim of abuse or neglect;
(2) orders of protection from domestic
abuse (note: circumstances indicating an applicant is or has been a victim of
domestic violence may be used as a mitigating factor in assessing risk);
(3) 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
(4) any other evidence with similar
indications of reliability.
[8.8.3.14
NMAC - Rp, 8.8.3.14 NMAC, 11/20/2024]
8.8.3.15 REHABILITATION PETITION: Any applicant whom the BCU concludes may be an unreasonable
risk, as identified in Subsection A (1) of 8.8.3.13 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 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. The BCU may
consider the age of the applicant at conviction, time since conviction, and
participation and completion in mitigating programs, treatment, and education.
[8.8.3.15
NMAC - Rp, 8.8.3.15 NMAC, 11/20/2024]
8.8.3.16 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, as charged would result in a determination of unreasonable risk;
(2) a pending child protective services
referral or any other CYFD investigation of abuse or neglect;
(3) an
outstanding warrant; or
(4) any other reason that creates an
unreasonable risk determination pursuant to these rules.
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.
[8.8.3.16 NMAC - Rp, 8.8.3.16 NMAC, 11/20/2024]
8.8.3.17 APPEAL RIGHTS:
A. Denials: Any
applicant who is found ineligible after completion of background check may
request an administrative review from the CYFD. 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
CYFD 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
rules; 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 CYFD 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 CYFD and shall be entitled to
a hearing pursuant to 8.8.4 NMAC. 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.
[8.8.3.17 NMAC - Rp, 8.8.3.17
NMAC, 11/20/2024]
HISTORY
OF 8.8.3 NMAC:
Pre-NMAC History: The material in this part was derived from that previously
filed with the State Records Center:
HED
85-6 (HSD), Regulations Governing Criminal Records Check and Employment History
of Licensees and Staff of Child Care Facilities, 8/30/85.
History
of Repealed Material:
HED
85-6 (HSD), Regulations Governing Criminal Records Check and Employment History
of Licensees and Staff of Child Care Facilities, filed - Repealed 7/30/2001.
8.8.3
NMAC, Governing Criminal Records Checks and Employment History Verification,
filed 7/30/2001 - Repealed effective 3/29/2002.
8.8.3
NMAC, Governing Criminal Records Checks and Employment History Verification,
filed 3/15/2002 - Repealed effective 10/30/03.
8.8.3
NMAC, Governing Background Checks and Employment History Verification, filed
10/16/2003 - Repealed effective 3/31/2006.
8.8.3
NMAC, Governing Background Checks and Employment History Verification, filed
3/31/2006 - Repealed effective 10/1/2016.
8.8.3
NMAC, Governing Background Checks and Employment History Verification, filed
10/1/2016 - Repealed effective 11/20/2024.