Current through Register Vol. 35, No. 18, September 24, 2024
A.
Criminal record checks: The agency conducts appropriate, legally permissible
and mandated state and federal criminal records inquiries into the background
of agency personnel, including employees and volunteers, and prospective
employees and volunteers. Agency personnel means current and prospective
operators, staff, employees and volunteers.
B. All requests for a federal background
check will be submitted within one week after commencement of employment or
volunteer service of those persons who, following receipt of a background check
clearance, have direct, unsupervised contact with children. The agency verifies
that the fingerprints were submitted to the state of New Mexico department of
public safety and the federal bureau of investigation.
(1) An agency staff member who has not
received a background check clearance works under the direct continuous
physical supervision of a staff member who has received the mandated federal
criminal records check clearance until a clearance is obtained.
(a) Exception: A new employee or volunteer
who has been a resident of the state of New Mexico for no less than five
continuous years immediately preceding the commencement of employment or
volunteer service with the agency and has received a background clearance
(meaning a negative criminal record check), from the state of New Mexico and
local law enforcement agencies pursuant to a request from the employing agency.
This exception applies only for 180 days following the original request for a
federal background clearance check, and is subject to the following
requirements:
(b) The use of the
services of an agency contracted by the department of public safety (DPS) who
can access the DPS database in order to obtain state criminal background checks
for those applicants who have resided in the state of New Mexico for five years
or more may be utilized as a means of obtaining state criminal records checks
prior to employment. Federal finger printing is still required. The use of an
alternate method to obtain state criminal background checks does not replace
the federal fingerprinting requirement.
(2) An individual is not eligible for
continued employment or service as a volunteer after being notified that the
federal background check reveals information that would disqualify the
individual from employment or work as a volunteer in the agency. The agency is
on violation of this standard if it retains the individual in employment or
volunteer service.
(a) If the agency has not
received a federal background check clearance within 180 calendar days after
the original request, the employee or volunteer remains under the direct
physical supervision of a cleared staff until the federal background check is
received and known to the agency.
(b) The department may extend the 180
calendar day period up to an additional 120 days, if the agency is able to
verify, to the satisfaction of the department, that the agency has done
everything required to obtain a completed federal background check within the
required time frame and the report has not been received due to circumstances
beyond the control of the agency.
(c) In those instances where extensions of
time are granted, the employee or volunteer remains within line of sight of a
cleared staff member until such time the results of the federal background
check are received and known to the agency.
(3) Any employee or volunteer who has
received state and federal background clearance while employed by, or providing
services at, another agency within 180 calendar days of commencement of
employment of service with the agency, is not required to undergo an additional
federal background check unless the agency itself requires or requests it or
the department believes it has cause to request it.
(4) If the prospective employee is not a
United States citizen, a criminal records clearance or its equivalent from the
persons country of origin is required if the individual has not lived in the
United States for five continuous years.
(5) Non-compliance with these criminal
records checks standards may result in sanction or loss of licensure.
C. Staff members who work directly
with children and who are counted in the staff-to-child ratio are 18 years of
age or older.
D. The director and
all staff having direct contact with the children including volunteers,
administrative, clerical, maintenance or other support staff, comply with the
regulations governing criminal record checks and employment history
verification.
E. Persons under the
age of 18 at all times work directly under the supervision of a staff member
who is physically present. Such persons are not counted in the staff
coverage.
F. Persons employed
solely for clerical, cooking, maintenance or other support activities who are
not left with children unsupervised, are not included in the staff
coverage.
G. Student trainees in
psychiatry, psychology, social work and /or nursing, who are officially
enrolled in a clinical training program of a New Mexico accredited institution
of higher learning, and who are under the supervision of a cleared New Mexico
licensed practitioner as defined by the certification requirements for child
and adolescent mental health services and who are cleared by a state criminal
records check, which may include clearance from DPS, or a department approved
state clearance mechanism, may be allowed to work with children unsupervised
during their enrolled student tenure if the trainee signs a sworn affidavit
attesting that he or she has never been convicted of a crime which would
disqualify him or her from providing direct services to children as provied by
these regulations.
