N.M. Admin. Code § 8.370.5.10

Current through Register Vol. 35, No. 23, December 10, 2024

Section 8.370.5.10 - ADMINISTRATIVE RECONSIDERATION

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.

N.M. Admin. Code § 8.370.5.10

Adopted by New Mexico Register, Volume XXXV, Issue 12, June 25, 2024, eff. 7/1/2024