Current through Register Vol. 35, No. 6, March 26, 2024
A.
Availability: The applicant, caregiver or hospital caregiver
whose nationwide criminal history record reflects a disqualifying conviction
may request an informal administrative reconsideration from the
department.
B.
Procedure for
Requesting Administrative Reconsideration:
(1) An applicant , caregiver or hospital
caregiver given notice of a disqualifying conviction may submit a written
request for an administrative reconsideration. To be effective, the written
request shall:
(a) be made within fourteen
(14) calendar days, as determined by the postmark, from the date of the notice
issued by the department;
(b) be
properly addressed to the department;
(c) state the applicants' , caregivers' or
hospital caregivers' name, home and work address, and telephone
numbers;
(d) state the applicants'
, caregivers' or hospital caregivers' employer or proposed employer name,
address and telephone numbers;
(e)
state the date of hire;
(f) state
the position title;
(g) describe
the duties of the position; and
(h)
describe the care recipients.
(2) If the applicant, caregiver or hospital
caregiver wishes to submit and have considered additional documentation (as
specified in Paragraph (1) of Subsection C of this section ) that additional
documentation must be included with the request for an administrative
reconsideration.
(3) An applicant,
caregiver or hospital caregiver requesting reconsideration shall include a
signed declaration identifying with specificity any criminal felony
convictions.
C.
Written Documentation: The documentation submitted with the request for
an administrative reconsideration may include information on the following.
(1) Credible and reliable evidence of the
actual disposition of any arrest for which the nationwide criminal history
record was incomplete. This could be evidence, for example, of the certified
copies of an acquittal, a dismissal, or conviction of a lesser included crime,
submitted to refute or rebut the presumption of a disqualifying conviction
created because the nationwide criminal history record was incomplete in not
showing the final disposition of an arrest for a crime that constitutes a
disqualifying conviction.
(2) The
applicant's, caregiver's or hospital caregiver's age at the time of each
disqualifying conviction.
(3) Any
mitigating circumstances when the offense was committed.
(4) Any court imposed sentence or punishment
and, if completed, when completed.
(5) Any successfully completed rehabilitation
program since the offense.
(6) The
applicant's, caregiver's or hospital caregiver's full employment history since
the disqualifying convictions.
(7)
And other relevant materials the applicant, caregiver or hospital caregiver may
wish to submit.
D.
Reconsideration Proceeding: The reconsideration proceeding is
intended to be an informal non-adversarial administrative review of written
documentation. It will be conducted by a reconsideration committee designated
for that purpose by the department. The reconsideration committee will issue an
employment clearance determination based upon the completed request for
reconsideration and all supporting documents submitted. In cases where the
reconsideration committee finds the need for additional or clarifying
information, the reconsideration committee may request that the applicant,
caregiver or hospital caregiver supply such additional information within the
time set forth in the reconsideration committees' request.
E.
Factors in Determination: In
determining whether an applicant's caregiver's or hospital caregiver's
nationwide criminal history record reflects a disqualifying conviction may be
employed, the reconsideration committee shall take into account the
requirements of Section
28-2-1 to
28-2-6,
NMSA 1978 of the criminal offender employment act. However, that act is not
dispositive. The following factors may be considered:
(1) total number of disqualifying
convictions;
(2) time elapsed since
last disqualifying conviction or since discharge of sentence;
(3) circumstances of crime including whether
violence was involved;
(4)
activities evidencing rehabilitation, including but not limited to substance
abuse or other rehabilitation programs;
(5) whether conviction was expunged by the
court or whether an unconditional pardon was granted;
(6) false or misleading statements about any
conviction in the signed declaration;
(7) evidence that applicant , caregiver or
hospital caregiver poses no risk of harm to the health and safety of care
recipients; and
(8) age of
applicant , caregiver or hospital caregiver at time of disqualifying
conviction.
F.
Grounds for Reconsideration Employment Clearance Determination: An
applicant, caregiver or hospital caregiver may be issued a reconsideration
employment clearance determination by the department where the request for
reconsideration and accompanying documentation clearly demonstrates that the
applicant, caregiver or hospital caregiver has satisfied one of the following
three grounds for a reconsideration employment clearance determination.
(1)
Inaccuracy: The nationwide
criminal history record inaccurately reflects a disqualifying conviction. This
ground for a reconsideration employment clearance determination applies:
(a) in instances of factual error in the
nationwide criminal history record, from any source;
(b) in instances of error arising from the
departments' application or use of the inappropriate criminal statute or
standard to the disqualifying conviction at issue; and
(c) in instances where the department,
pursuant to the applicant's, caregiver's or hospital caregiver's required
consent, applies a rebuttable presumption of a disqualifying conviction to an
arrest for a felony that lacks a final disposition in the nationwide criminal
history record.
(2)
No Risk of Harm: The employment or contractual services provided
by an applicant, caregiver or hospital caregiver with a disqualifying
conviction presents no risk of harm to a care recipient. The reconsideration
employment clearance determination issued by the reconsideration committee
under this ground may be limited, in certain cases, based upon the evidence in
the request for reconsideration and the accompanying documentation. The
reconsideration determination of whether the applicant, caregiver or hospital
caregiver presents no risk of harm to a care recipient is based upon the risk
arising from the disqualifying conviction.
(3)
No Bearing on Fitness: The
disqualifying conviction does not directly bear upon the applicant's,
caregiver's, or hospital caregiver's fitness for employment.
