Current through Register Vol. 35, No. 18, September 24, 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
authority.
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 14 calendar
days, as determined by the postmark, from the date of the notice issued by the
authority;
(b) be properly
addressed to the authority;
(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 authority. 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 authority 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
authoritys' application or use of the inappropriate criminal statute or
standard to the disqualifying conviction at issue; and
(c) in instances where the authority,
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.
