New Mexico Register / Volume XXXVI,
Issue 2 / January 28, 2025
This is an
amendment to 8.370.5 NMAC Sections 8 and 9, effective 1/28/2025.
8.370.5.8 CAREGIVER
AND HOSPITAL CAREGIVER EMPLOYMENT REQUIREMENTS:
A. General: The responsibility for compliance with
the requirements of the act applies to both the care provider and to all
applicants, caregivers and hospital caregivers.
All applicants for employment to whom an offer of employment is made or
caregivers and hospital caregivers employed by or contracted to a care provider
must consent to a nationwide and statewide criminal history screening, as
described in Subsections D, E and F of this section, upon offer of employment
or at the time of entering into a contractual relationship
with the care provider. Care providers
shall submit all fees and pertinent application information for all applicants,
caregivers or hospital caregivers as described in Subsections D, E and F of
this section. Pursuant to Section
29-17-5 NMSA 1978 (amended) of the act, a care provider’s failure to comply is
grounds for the state agency having enforcement authority with respect to the
care provider to impose appropriate administrative sanctions and penalties.
B. Exception: A caregiver or
hospital caregiver applying for employment or contracting services with a care
provider within 12 months of the caregiver’s or hospital caregiver’s most
recent nationwide criminal history screening which list no disqualifying
convictions shall only apply for a statewide criminal history screening upon
offer of employment or at the time of entering into a
contractual relationship with the care provider. At the discretion of the care provider a
nationwide criminal history screening, additional to the required statewide
criminal history screening, may be requested.
C. Conditional employment: Applicants, caregivers, and hospital
caregivers who have submitted all completed documents and paid all applicable
fees for a nationwide and statewide criminal history screening may be deemed to
have conditional supervised employment pending receipt of written notice given
by the authority as to whether the applicant, caregiver or hospital caregiver
has a disqualifying conviction.
D. Application: In order for a nationwide criminal
history record to be obtained and processed, the following shall be submitted
to the authority on forms provided by the authority.
(1) A
form containing personal identification which has a photograph of the person and which meets the requirements for employment
eligibility in accordance with the immigration and nationality act as
amended. A reasonable xerographic copy
of a drivers license photograph will suffice under Subsection D of 8.370.5.8
NMAC.
(2) A
signed authorization for release of information form.
(3) Three
complete sets of readable fingerprint cards or other authority
approved media acceptable to the department of public safety and the federal
bureau of investigation submitted using black ink.
(4) The
fee specified by the authority for the nationwide and statewide criminal
history screening investigation [shall not exceed $74. Of which, $24 shall be applied for the
federal bureau of investigation nationwide criminal history screening, seven
dollars shall be applied for the statewide criminal history screening. The remaining application fee] shall be
applied to cover costs incurred by the authority to support activities required
by the act and these rules. The fees
will not be applied to any other activity or expense undertaken by the
authority.
(5) If
the applicant, caregiver or hospital caregiver must submit another readable set
of fingerprint cards upon notice that the fingerprint cards previously
submitted were found unreadable, as determined by the federal bureau of
investigation or department of public safety, the submission of a second set of
fingerprint cards is required, a separate fee will not be charged. A fee shall be charged for submission of a
third and subsequent fingerprint sets.
(6) If
the applicant, caregiver or hospital caregiver has a physical or medical
condition which prevents the applicant, caregiver or hospital caregiver from
producing readable fingerprints using commonly available fingerprinting
techniques, the applicant, caregiver or hospital caregiver shall submit the
fingerprint cards with a notarized affidavit signed by the applicant,
caregiver, hospital caregiver, returned to the authority within 14 calendar
days, as determined by the postmark, which provides:
(a) identification of the applicant,
caregiver or hospital caregiver; and
(b) an
explanation of, or a statement describing, the applicant’s, caregiver’s or
hospital caregiver’s good faith efforts to supply readable fingerprints; and
(c) the physical or medical reason that
prevents the applicant, caregiver or hospital caregiver from producing readable
fingerprints using commonly available fingerprinting techniques;
(d) an applicant, caregiver or hospital
caregiver meeting the conditions of this paragraph and who has resided in the
state of New Mexico for less than 10 years must also submit a 10 year work
history in addition to the required affidavits.
(7) All
documentation submitted to the authority for the purposes of criminal history
screening and for the purposes set forth in 8.370.5.9 NMAC and 8.370.5.10 NMAC
shall become the sole property of the authority with the
exception of fingerprint cards which shall be destroyed upon clearance
by both the federal bureau of investigation and department of public
safety. All other submitted documentation shall be retained by the
authority for a period of one year from the final date of closure and
thereafter shall be archived.
E. Fees: The federal bureau of investigation
has a mandatory processing fee with no exceptions. The authority and department of public safety
impose a state processing and administrative fee. The fee payment must
accompany the fingerprint application, or otherwise be
credited to the authority prior to or at the same time with the authority’s
receipt of the application documents.
The manner of payment of the fee is by bank cashier check or money order
payable to the New Mexico health care authority or other method of funds
transfer acceptable to the authority.
Business checks will be accepted unless the business tendering the check
has previously tendered a check to the authority unsupported by sufficient
funds. Neither cash nor personal checks
will be accepted. The fee may be paid by
the care provider or by the applicant, caregiver or hospital caregiver. The authority will set a fee in addition to
the fees imposed by department of public safety and
the federal bureau of investigation that will fully and completely cover costs
incurred by the authority to support activities required by the act and these
rules. The fees will not be applied to
any other activity or expense undertaken by the authority.
F. Timely
submission: Care providers shall
submit all fees and pertinent application information for all individuals who
meet the definition of an applicant, caregiver or hospital caregiver as
described in Subsections B, D and K of 8.370.5.7 NMAC, no later than 20
calendar days from the first day of employment or effective date of a
contractual relationship with the care provider.
G. Maintenance of records: Care providers shall maintain
documentation relating to all employees and contractors
evidencing compliance with the act and these rules.
(1) During
the term of employment, care providers shall maintain evidence of each
applicant, caregiver or hospital caregiver’s clearance, pending
reconsideration, or disqualification.
(2) Care
providers shall maintain documented evidence showing the basis for any
determination by the care provider that an employee or contractor performs job functions
that do not fall within the scope of the requirement for nationwide or
statewide criminal history screening. A
memorandum in an employee’s file stating “This employee does not provide direct
care or have routine unsupervised physical or financial access to care
recipients served by (name of care provider)” together with the employee’s job
description, shall suffice for record keeping purposes.
[8.370.5.8 NMAC - N,
7/1/2024, A, 01/28/2025]
8.370.5.9 CAREGIVERS OR HOSPITAL CAREGIVERS AND
APPLICANTS WITH DISQUALIFYING CONVICTIONS:
A. Prohibition on employment: A
care provider shall not hire or continue the employment or contractual services
of any applicant, caregiver or hospital caregiver for whom the care provider
has received notice of a disqualifying conviction, except as provided in
Subsection B of this section.
(1) In
cases where the criminal history record lists an arrest for a crime that would
constitute a disqualifying conviction and no final disposition is listed for
the arrest, the authority will attempt to notify the applicant, caregiver or
hospital caregiver and request information from the applicant, caregiver or
hospital caregiver within timelines set forth in the authority’s notice
regarding the final disposition of the arrest.
Information requested by the authority may be evidence, for example, a
certified copy of an acquittal, dismissal or conviction of a lesser included
crime.
(2) An
applicant’s, caregiver’s or hospital caregiver’s failure to respond within the
required timelines regarding the final disposition of the arrest for a crime
that would constitute a disqualifying conviction shall result in the
applicant’s, caregiver’s or hospital caregiver’s temporary disqualification
from employment as a caregiver or hospital caregiver pending written
documentation submitted to the authority evidencing the final disposition of
the arrest. Information submitted to the
authority may be evidence, for example, of the certified copy of an acquittal,
dismissal or conviction of a lesser included crime. In instances where the applicant, caregiver
or hospital caregiver has failed to respond within the required timelines the
authority shall provide notice by [certified] mail or electronic
communication that an employment clearance has not been granted. The care provider shall then follow the
procedure of Subsection A of 8.370.5.9 NMAC.
(3) The authority will not make a final
determination for an applicant, caregiver or hospital caregiver with a pending
potentially disqualifying conviction for which no final disposition has been
made. In instances of a pending
potentially disqualifying conviction for which no final disposition has been
made, the authority shall notify the care provider, applicant, caregiver or
hospital caregiver by [certified] mail or electronic communication
that an employment clearance has not been granted. The care provider shall then follow the
procedure of Subsection A of 8.370.5.9 NMAC.
B. Employment pending reconsideration
determination: At the discretion of
the care provider, an applicant, caregiver or hospital caregiver whose
nationwide criminal history record reflects a disqualifying conviction and who
has requested administrative reconsideration may continue conditional
supervised employment pending a determination on reconsideration.
C. Notice of final determination of disqualification: Upon receipt of a notice of final determination of disqualification
a care provider shall:
(1) immediately
and permanently remove an applicant, caregiver or hospital caregiver from any
position of employment that meets the definition of an applicant, caregiver or
hospital caregiver as set forth in Subsections D and K of 8.370.5.7 NMAC; and
(2) notify
the authority by letter within 14 calendar days, as determined by the postmark,
of the date and type of action taken to satisfy the removal requirements of as
set forth in Paragraph (1) of Subsection C of this section via written
documentation signed by an authorized agent of the care provider.
[8.370.5.9 NMAC - N, 7/1/2024; A, 01/28/2025]