§ 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 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: (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 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 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 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 [Chapter 28, Article 2 NMSA 1978]. 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, 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 [Chapter 29, Article 10 NMSA 1978]. 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 recipient.

Legislative History

Laws 1998, ch. 68, § 4; 1999, ch. 112, § 2; 2005, ch. 226, § 2; 2025, ch. 30, §