HJC/HB 131
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AN ACT
RELATING TO PUBLIC SAFETY; SHIFTING RESPONSIBILITY FOR
OVERSEEING CAREGIVER BACKGROUND CHECKS FROM THE DEPARTMENT OF
HEALTH TO THE HEALTH CARE AUTHORITY; ADDING TO THE LIST OF
DISQUALIFYING CONVICTIONS FOR CAREGIVERS; ALLOWING THE HEALTH
CARE AUTHORITY TO DISQUALIFY CERTAIN CAREGIVERS; PROVIDING
FOR TRANSFER OF FUNCTIONS, RECORDS AND EQUIPMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 29-17-5 NMSA 1978 (being Laws 1998,
Chapter 68, Section 4, as amended) is amended to read:
"29-17-5. CRIMINAL HISTORY SCREENING REQUIRED--
REGULATORY IMPLEMENTATION--APPEALS.--
A. The health care authority is authorized to
receive an applicant's, caregiver's or hospital caregiver's
nationwide criminal history record obtained by the department
of public safety as a result of a nationwide criminal history
screening pursuant to an applicant's, caregiver's or hospital
caregiver's authorization for such nationwide criminal
history screening. Providers shall submit a set of
fingerprints of applicants, caregivers and hospital
caregivers to the health care authority for a nationwide
criminal history screening, and the department of public
safety shall accept from the health care authority such
fingerprints for the purpose of conducting a nationwide HJC/HB 131
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criminal history screening.
B. The health care authority is authorized to
promulgate rules to implement the Caregivers Criminal History
Screening Act, including rules establishing fingerprint
submission procedures; fees; confidentiality; time frames for
an applicant's or caregiver's nationwide criminal history
screening; procedures for clarifying incomplete or confusing
criminal history information; provider sanctions for
noncompliance; and employment procedures pending the results
of the nationwide criminal history screening relating to
applicants and caregivers.
C. No caregiver or hospital caregiver may be
employed by a care provider unless the caregiver or hospital
caregiver first has submitted to a request for a nationwide
criminal history screening prior to beginning employment in
accordance with procedures established by rule by the health
care authority and department of public safety. A caregiver
or hospital caregiver shall apply for statewide criminal
history screening when applying for employment with a care
provider within twelve months of the caregiver's or hospital
caregiver's most recent nationwide criminal history
screening.
D. The following felony convictions disqualify an
applicant, caregiver or hospital caregiver from employment as
a caregiver: HJC/HB 131
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(1) homicide;
(2) trafficking controlled substances;
(3) kidnapping, false imprisonment,
aggravated assault or aggravated battery, including
aggravated battery of a household member;
(4) rape, criminal sexual penetration,
criminal sexual contact, incest, indecent exposure or other
related sexual offenses;
(5) crimes involving adult abuse, neglect or
financial exploitation;
(6) crimes involving child abuse or neglect;
(7) robbery, larceny, burglary, fraud,
extortion, forgery, embezzlement, credit card fraud or
receiving stolen property;
(8) an attempt, solicitation or conspiracy
involving any of the felonies in this subsection;
(9) human trafficking;
(10) assault of a peace officer;
(11) identity theft; or
(12) cruelty to animals.
E. The health care authority:
(1) may disqualify an applicant, caregiver
or hospital caregiver from employment as a caregiver if that
applicant, caregiver or hospital caregiver poses an
unreasonable risk to care recipients. In determining whether HJC/HB 131
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a person poses an unreasonable risk as a caregiver, the
health care authority shall assess the totality of the
circumstances using reasonably reliable information, such as
court records. The health care authority may only find that
an applicant, caregiver or hospital caregiver poses an
unreasonable risk if the preponderance of the evidence
establishes an unreasonable risk due to the applicant,
caregiver or hospital caregiver having:
(a) two or more convictions related to
abuse, neglect or exploitation within the past ten years,
regardless of the degree of the crime; or
(b) a single conviction or pending
charges, regardless of the degree of the crime, if the crime
is related to: 1) abuse, neglect or exploitation of a care
recipient; 2) human trafficking; 3) criminal sexual
penetration or related sexual offenses; 4) battery of a
household member; or 5) child abuse; and
(2) shall provide an administrative
reconsideration process for applicants, caregivers and
hospital caregivers who are determined to be an unreasonable
risk. The burden of proof is on the health care authority to
demonstrate unreasonable risk by a preponderance of the
evidence. An applicant, caregiver or hospital caregiver
shall have the right to judicial review of any final decision
made by the health care authority pursuant to this HJC/HB 131
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subsection.
F. Upon receipt by the health care authority of
the results of the applicant's, caregiver's or hospital
caregiver's nationwide criminal history screening, the
authority shall give notice to the submitting care provider
whether the applicant or caregiver is disqualified pursuant
to Subsection D or E of this section. No other results of
the applicant's, caregiver's or hospital caregiver's
nationwide criminal history screening shall be provided to
the care provider. Except as provided in Subsection G of
this section, a care provider shall not employ an applicant
or continue to employ a caregiver or hospital caregiver whose
nationwide criminal history screening record reflects a
disqualifying conviction or an unreasonable risk. When the
health care authority provides notice to the care provider of
a disqualification pursuant to Subsection D or E of this
section, it shall also notify the applicant, caregiver or
hospital caregiver, stating with specificity the reasons on
which its decision is based and identifying the agency that
provided the records.
G. An applicant, caregiver or hospital caregiver
whose nationwide criminal history record, obtained through
the applicant's, caregiver's or hospital caregiver's
nationwide criminal history screening and other clarifying
endeavors of the health care authority, results in a HJC/HB 131
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disqualification pursuant to Subsection D or E of this
section, may request from the authority an administrative
reconsideration. The care provider may, in its discretion,
continue to employ such person during the pendency of the
reconsideration. A care provider may employ the applicant or
caregiver if the reconsideration proceeding results in a
reversal of the health care authority's decision.
H. The health care authority is authorized to
adopt rules for the administrative reconsideration proceeding
available to an applicant or caregiver whose nationwide
criminal history record reflects a disqualifying conviction
or an unreasonable risk. The rules shall take into account
the requirements of the Criminal Offender Employment Act.
I. A care provider shall maintain records
evidencing compliance with the requirements of this section
with respect to all applicants and caregivers employed on or
after May 20, 1998.
J. All criminal history records obtained pursuant
to this section by the health care authority are
confidential. No criminal history records obtained pursuant
to this section shall be used for any purpose other than
determining whether an applicant, caregiver or hospital
caregiver is disqualified pursuant to Subsection D or E of
this section. Except on court order or with the written
consent of the applicant, caregiver or hospital caregiver, HJC/HB 131
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criminal records obtained pursuant to this section and the
information contained therein shall not be released or
otherwise disclosed to any other person or agency. A person
who discloses confidential records or information in
violation of this section is guilty of a misdemeanor and
shall be sentenced pursuant to the provisions of Subsection A
of Section 31-19-1 NMSA 1978.
K. The health care authority shall maintain a
registry of all applicants who are disqualified from
employment or contractual service as caregivers or hospital
caregivers. An applicant's arrest record information shall
not be released except upon request of the applicant as
provided in the Arrest Record Information Act.
L. A care provider, including its administrators
and employees, is not civilly liable to an applicant or a
caregiver for a good faith decision to employ, not employ or
terminate employment pursuant to the Caregivers Criminal
History Screening Act.
M. Failure to comply with the requirements of this
section are grounds for the state agency having enforcement
authority with respect to the care provider to impose
appropriate administrative sanctions and penalties.
N. For the purposes of this section, "unreasonable
risk" means a level of risk that a reasonable person would be
unwilling to take regarding the safety or welfare of a care HJC/HB 131
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recipient."
SECTION 2. TEMPORARY PROVISION--TRANSFER OF
FUNCTIONS.--On the effective date of this act, all functions,
records and equipment related to the oversight of caregiver
criminal history records shall be transferred from the
department of health to the health care authority.
SECTION 3. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2025.