New Mexico Register / Volume XXXII, Issue 24 / December 28, 2021
This is an amendment to 16.64.11 NMAC, Sections 2,
3, 6, 7, 8, 10, 13 and new Section 14, effective 12/28/2021.
16.64.11.2 SCOPE:
16.64.11 NMAC applies to [the board,] licensees, applicants for
licensure, and the general public.
[2/21/1997; 16.64.11.2 NMAC - Rn & A, 16 NMAC 64.11.2, 9/15/2001; A, 12/28/2021]
16.64.11.3 STATUTORY AUTHORITY: [16.64.11 NMAC is adopted pursuant to the
Funeral Services Act, NMSA 1978, Section 61-32-2, 61-32-6, 61-32-7, 61-32-24
and the Uniform Licensing Act, Section 61-1-1 et seq., NMSA 1978.] These
rules are promulgated pursuant to the Funeral Services Act, Chapter 61, Article
32 NMSA 1978.
[2/21/1997; 16.64.11.3 NMAC - Rn, 16 NMAC 64.11.3, 9/15/2001; A, 8/8/2012; A, 12/28/2021]
16.64.11.6 OBJECTIVE: 16.64.11 NMAC [is to establish] establishes
the procedures for filing and processing complaints, and for taking
disciplinary action against licensees and applicants for licensure, for violations
of provisions in the Funeral Services Act or [any provisions of 16.64
NMAC] any rule or regulation issued pursuant to the Act.
[2/21/1997; 16.64.11.6 NMAC - Rn, 16 NMAC 64.11.6, 9/15/2001; A, 8/8/2012; A, 12/28/2021]
16.64.11.7 DEFINITIONS:
A. ”Complaint” means a complaint filed with the board.
B. “Complainant” means the complaining party of a complaint filed against a licensee(s), or applicant for licensure, who is/are governed under the Funeral Services Act.
C. “disqualifying criminal conviction” has the same meaning as defined in Subsection E of Section 61-1-36 NMSA 1978.
[C] D. “Respondent” means [a licensee, or]
an applicant for licensure, a licensee or other person subject to the
provisions of [who is governed under] the Funeral Services Act, and who
is the subject of a complaint for claimed violations of the Act or any rule
or regulation issued pursuant to the Act.
[D] E. “Notice of contemplated action” means
the administrative process used by the board for a licensee or applicant for
licensure to be afforded notice and an opportunity to be heard in a formal
hearing setting before the board has authority to take any action which would
have the effect of denying, revoking, or suspending a license or application
for licensure governed by the Uniform Licensing Act.
[2/21/1997; 16.64.11.7 NMAC - Rn, 16 NMAC 64.11.7, 9/15/2001; A, 8/8/2012; A, 12/28/2021]
16.64.11.8 GENERAL PROVISIONS:
A. [Inquiries regarding making a complaint:]
Any person, including any member of the board or board staff, may initiate
a complaint in writing. Complaints
should be submitted on a form prescribed by the board.
B. Complaints
[must]shall contain factual allegations constituting [the
alleged] violations of any provisions of the Funeral Services Act or [16.64
NMAC] any rule or regulation issued pursuant to the Act.
[2/21/1997; 16.64.11.8 NMAC - Rn & A, 16 NMAC 64.11.8, 9/15/2001; A, 8/8/2012; A, 12/28/2021]
16.64.11.10 COMPLAINT COMMITTEE:
A. The
board chair will appoint a complaint committee consisting of at least one
person, who will be a professional member on the board. The board chair may also appoint to the complaint
committee the board administrator [and/or] or a complaint manager.
B. The complaint committee will handle complaints in a confidential manner as required by law.
C. The complaint committee will review all complaints received by the board, conduct whatever action it deems necessary in the course of gathering information, and make recommendations for disposition of the complaint to the full board in executive session to maintain the confidentiality of the complaint.
D. No complaint committee meeting will be held without the presence of the professional board member.
E. A complaint committee member who is partial or who believes he or she is not capable of judging a particular controversy fairly on the basis of its own circumstances will not participate and another member will be appointed by the chair to serve on the committee if required.
F. For any complaint which the complaint committee reasonably anticipates may be referred to the board for consideration of the issuance of a notice of contemplated action, the respondent will be provided a copy of the complaint and will be allowed a reasonable time in which to respond to the allegations in the complaint. The foregoing notwithstanding, the complaint committee will not be required to provide the respondent with a copy of the complaint, or with notice of the filing of a complaint or any related investigation, prior to the issuance of a notice of contemplated action if the committee determines that disclosure may impair, impede or compromise the efficacy or integrity of the investigation.
G. If the complaint committee determines that further information is needed, it may issue investigative subpoenas, pursuant to the Uniform Licensing Act; employ an investigator, or experts, or other persons whose services are determined to be necessary, in order to assist in the processing and investigation of the complaint. The complaint committee will have independent authority to employ such persons, without prior approval of the board. The board administrator will determine budgetary availability, and will contract for investigative services.
H. Upon completion of its review or investigation of a complaint, the complaint committee will present a summary of the case to the board for the purpose of enabling the board to decide whether to proceed with the case or to dismiss the case. The summary will be identified by complaint number without identifying the complainant(s) or respondent(s) by name.
[2/21/1997, 1/22/1999; 16.64.11.10 NMAC - Rn & A, 16 NMAC 64.11.10, 9/15/2001; A, 12/28/2021]
16.64.11.13 NOTICE OF CONTEMPLATED ACTION:
A. All disciplinary proceedings will be conducted in accordance with the Uniform Licensing Act.
B. The
chair of the board, or [his/her] its designee, will serve as hearing
officer for disciplinary proceedings for the purpose of administering
pre-hearing procedural matters. The hearing
officer will be fully authorized to make all necessary procedure decisions on
behalf of the board, including, but not limited to, matters related to
discovery, continuances, time extensions, amendments, pre-hearing conferences,
and proposed findings of fact and conclusions of law.
C. The
hearing officer may make such orders as [he/she determinesmay be] deemed
necessary to implement the authority conferred by Subsection B of 16.64.11.13
NMAC, including, but not limited to, discovery schedules, pleading schedules,
and briefing schedules.
D. No party will engage in ex-parte communications with the hearing officer or any member of the board in any matter in which a notice of contemplated action has been issued.
E. Licensees and applicants for licensure who have been found culpable and sanctioned by the board will be responsible for the payment of all costs of the disciplinary proceedings.
F. Any license, including a wall certificate, issued by the board and subsequently suspended or revoked, will be promptly returned to the board office, in person or by registered mail, no later than 30 days of receipt of the board’s order suspending or revoking the license.
[2/21/1997; 1/22/1999; 16.64.11.13 NMAC - Rn & A, 16 NMAC 64.11.13, 9/15/2001, A, 12/28/2021]
16.64.11.14
DISQUALIFYING CRIMINAL CONVICTIONS:
A. Convictions for any of the following criminal offenses,
or their equivalents in any other jurisdiction, are disqualifying criminal
convictions that could disqualify an applicant from receiving a license, or a
licensee from retaining a license, issued by the board:
(1) murder;
(2) manslaughter;
(3) assisting
suicide;
(4) aggravated
assault;
(5) assault
with intent to commit a violent felony;
(6) aggravated
battery inflicting great bodily harm or with deadly weapon;
(7) injury
to a pregnant woman;
(8) aggravated
assault upon a school employee;
(9) assault
with intent to commit a violent felony upon a school employee;
(10) aggravated
battery upon a school employee;
(11) aggravated
battery upon a sports official;
(12) aggravated
assault upon a health care worker;
(13) assault
with intent to commit a violent felony upon a health care worker;
(14) battery
upon a health care worker;
(15) aggravated
battery upon a health care worker;
(16) assisting
or being assisted by one or more other persons to commit a battery upon a
health care worker;
(17) assault
against a household member with intent to commit a violent felony;
(18) aggravated
battery against a household member;
(19) 3rd
or subsequent conviction for battery against a household member;
(20) 2nd
or subsequent conviction for stalking;
(21) aggravated
stalking;
(22) kidnapping;
(23) criminal
use of ransom;
(24) abandonment
of a child resulting in death or great bodily harm;
(25) abuse
of a child;
(26) negligent
abuse of a child resulting in death;
(27) intentional
abuse of a child 12 to 18 years old resulting in death;
(28) intentional
abuse of a child less than 12 years old resulting in death;
(29) sexual
exploitation of children;
(30) sexual
exploitation of children by prostitution;
(31) seizing
or exercising control of a bus by force or violence or by threat of force or
violence; (32) intimidating,
threatening or assaulting any driver, attendant, guard or passenger of a bus
with the intent of seizing or exercising control of a bus;
(33) a
felon in possession of a firearm;
(34) false
reporting, causing great bodily harm, of a fire or explosion or the placement
of any incendiary device;
(35) promoting
prostitution;
(36) accepting
the earnings of a prostitute;
(37) criminal
sexual penetration;
(38) criminal
sexual contact;
(39) criminal
sexual contact of a minor;
(40) aggravated
indecent exposure;
(41) incest;
(42) disturbing
a marked burial ground;
(43) desecration of a church;
(44) larceny;
(45) robbery;
(46) burglary;
(47) aggravated
burglary;
(48) fraud;
(49) unlawful dealing
in federal food coupons or WIC checks;
(50) embezzlement;
(51) extortion;
(52) forgery;
(53) receiving
stolen property;
(54) falsely
obtaining services or accommodations;
(55) improper
sale, disposal, removal or concealing of encumbered property;
(56) shoplifting;
(57) theft
of identity;
(58) theft
of a credit card by taking or retaining possession of card taken;
(59) fraudulent
transfer or receipt of a credit card;
(60) dealing
in credit cards of another;
(61) forgery
of a credit card;
(62) fraudulent
signing of credit cards or sales slips or agreements;
(63) fraudulent
use of a credit card;
(64) certain
fraudulent acts by merchants or their employees;
(65) possession
of 4 or more incomplete credit cards or machinery, plates or other contrivance;
(66) fraudulent
acts to obtain or retain possession of rented or leased vehicle or other
personal property;
(67) fraudulent
refusal to return a leased vehicle or other personal property;
(68) unlawful
taking of a vehicle or motor vehicle;
(69) embezzlement
of a vehicle or motor vehicle;
(70) fraudulently
obtaining a vehicle or motor vehicle;
(71) receiving or transferring a stolen
vehicle or motor vehicle;
(72) altering
or changing engine or other numbers of vehicle or motor vehicle;
(73) arson
or negligent arson;
(74) aggravated
arson;
(75) transporting
stolen livestock;
(76) 3rd
conviction for unlawful demonstrations or protests at funerals and memorial
services;
(77) sabotage;
(78) escape
from penitentiary;
(79) possession
of deadly weapon or explosive by prisoner in lawful custody;
(80) assault
with intent to commit a violent felony upon a peace officer;
(81) battery
upon a peace officer;
(82) aggravated
battery upon a peace officer;
(83) disarming
a peace officer;
(84) paying
or receiving public money for services not rendered;
(85) unlawful
interest in a public contract;
(86) bribery
of public officer or public employee;
(87) demanding
or receiving bribe by public officer or public employee;
(88) bribery
or intimidation of a witness;
(89) retaliation
against a witness;
(90) acceptance
of a bribe by a witness;
(91) perjury;
(92) tampering
with public records;
(93) attempt
to commit a felony;
(94) conspiracy;
(95) criminal
solicitation;
(96) intentionally
trafficking controlled substances;
(97) intentionally
distributing a controlled substance to a person under the age of eighteen
years;
(98) intentionally
distributing or possessing with intent to distribute a controlled substance;
(99) manufacturing,
distributing or possessing with intent to distribute an imitation controlled
substance;
(100) intentionally
selling an imitation controlled substance to a person under the age of eighteen
years;
(101) intentionally
possessing an imitation controlled substance with the intent to distribute;
(102) issuing
a worthless check;
(103) child
solicitation by electronic communication device;
(104) criminal
sexual communication with a child;
(105) 2nd
or subsequent unauthorized distribution of sensitive images;
(106) failing
to disclose facts or change of circumstances to obtain public assistance;
(107) unlawful
use of food stamp identification card or medical identification card;
(108) misappropriating
public assistance;
(109) making
or permitting a false claim for reimbursement of public assistance services;
(110) failure
to reimburse the human services department upon receipt of third party payment;
(111) soliciting or receiving illegal kickback;
(112) offering
or paying illegal kickback;
(113) engaging
in a pattern of racketeering activity;
(114) making,
conspiring, or attempting to make an extortionate extension of credit;
(115) knowingly
advancing money or property to any person with reasonable grounds to believe
that it is the intention of that person to use the money or property so
advanced for the purpose of making extortionate extensions of credit;
(116) knowingly
participating, conspiring, or attempting to participate in the use of any
extortionate means to collect any extensions of credit or to cause harm to the
person, reputation or property of any person for the nonpayment thereof;
(117) falsification
of documents in connection with the Medicaid Fraud Act;
(118) obstruction
of investigation in connection with the Medicaid Fraud Act;
(119) medicaid
fraud;
(120) computer
access with intent to defraud or embezzle;
(121) computer
abuse;
(122) abuse
of a care facility resident;
(123) neglect
of a care facility resident;
(124) exploitation
of a care facility resident's property;
(125) fraudulent
telemarketing;
(126) money
laundering;
(127) human
trafficking;
(128) willfully
or knowingly failing to comply with the registration or verification requirements
of the Sex Offender Registration and Notification Act;
(129) willfully
or knowingly providing false information when complying with the registration
or verification requirements of the Sex Offender Registration and Notification
Act;
(130) homicide
by vehicle;
(131) great
bodily harm by vehicle;
(132) injury
to pregnant woman by vehicle;
(133) 4th
or subsequent driving under the influence of intoxicating liquor or drugs;
(134) practicing
medicine without a license;
(135) making
a false statement under oath, or submitting a false affidavit, in connection
with the Medical Practice Act;
(136) knowingly
and willfully obtain information on a consumer from a credit bureau under false
pretenses; or knowingly and willfully provide information concerning a consumer
from the credit bureau's files to a person or firm not authorized to receive
that information;
(137) knowingly
and willfully obtain information on a consumer from a credit bureau under false
pretenses; or knowingly and willfully provide information concerning a consumer
from the credit bureau's files to a person or firm not authorized to receive
that information;
(138) offering
a bribe connected with or incidental to any election;
(139) willful
violation of any provision of the Model State Commodity Code;
(140) willful
violation of the New Mexico Uniform Securities Act;
(141) an
act or omission, with intent to defraud, expressly declared to be unlawful by
the Banking Act;
(142) knowing
violation of any provision of the Savings and Loan Act, with intent to defraud;
(143) certain
acts by credit union executive officer, director, committee member, employee or
agent;
(144) maliciously
and knowingly spreading false reports or uttering false statements about the
management or finances of any credit union;
(145) making
a false statement in writing for the purpose of obtaining credit union funds;
(146) the
supervisor or any examiner, inspector, deputy, assistant or clerk appointed or
acting under the provisions of the Savings and Loan Act who fails to keep
secret any facts or information regarding an association obtained in the course
of an examination or by reason of his official position, except when the public
duty of the officer or employee requires him to report upon or take official
action regarding the affairs of the association examined, or who willfully
makes a false official report as to the condition of an association;
(147) any
person who knowingly makes, utters, circulates or transmits to another, or
others, any statement untrue in fact, derogatory to the financial condition of
any association subject to the Savings and Loan Act or any federal association
in this state with intent to injure the financial institution, or who counsels,
aids, procures or induces another to originate, make, utter, transmit or
circulate any such statement with like intent;
(148) any
person who knowingly makes, utters, circulates or transmits to another, or
others, any statement untrue in fact, derogatory to the financial condition of
any association subject to the Savings and Loan Act or any federal association
in this state with intent to injure the financial institution, or who counsels,
aids, procures or induces another to originate, make, utter, transmit or
circulate any such statement with like intent;
(149) certain
violations of the Mortgage Loan Company Act;
(150) second
or subsequent conviction for unlicensed activity contrary to the New Mexico
Mortgage Loan;
(151) violation
of the Endowed Care Cemetery Act;
(152) certain
violations of the Mortgage Loan Company Act;
(153) certain
violations of the Uniform Money Services Act;
(154) making
an unauthorized withdrawal from the account of another person with a financial
institution, or stealing the card of another,
or making an unauthorized use of the card of another;
(155) use
of a name or title containing the phrase “credit union” or any derivation
thereof, representing a business or individual as a credit union or conducting
business as a credit union except as permitted by law;
(156) practicing
or attempting to practice dentistry without complying with the Dental Health
Care Act and without holding license to practice dentistry in New Mexico;
(157) practicing,
attempting or offering to practice osteopathic medicine with a suspended or
revoked osteopathic medicine license;
(158) practicing
or attempting to practice osteopathic medicine without complying with the
Osteopathic Medicine Act and without holding a license;
(159) intent
to defraud uses on a public security or instrument of payment;
(160) misuse
of public funds;
(161) bribery
of public officer or public employee;
(162) misuse
of public funds;
(163) tax
Fraud;
(164) requesting
money, thing of value or promise in exchange for performance of official act;
(165) official
act for personal gain;
(166) excavation
of unmarked burials w/o permit;
(167) provides
false information or violates provisions of Vital Statistics Act;
(168) intentionally
falsifies, forges, conceals, defaces or obliterates a document of anatomical
gift, an amendment or revocation of a document of an anatomical gift, or a
refusal, for personal gain, commits a third degree felony;
(169) knowingly
purchases or sells a part for transplantation or therapy if removal of a part
from an individual is intended to occur after the individual's death;
(170) making
false statement in claim for payment under Indigent Hospital and County Health
Care Act;
(171) unauthorized
obtain or use of DNA samples or DNA records;
(172) sex
offender who fails to comply with SORNA re moving to another state;
(173) certain
violations of the Hazardous Waste Act;
(174) certain
violations of the Air Quality Control Act;
(175) certain
violations of the Solid Waste Act;
(176) injuring
or threatening to injure a customer's credit because the customer refuses to
pay charges resulting from cramming or slamming (telecommunications services);
(177) giving
false testimony or information as to any matter material to an examination by
the Superintendent of Insurance;
(178) willfully
making a false or fraudulent statement in any verified report or declaration
under oath in connection with fraternal benefit societies;
(179) making
a false entry in a book, report or statement of an insurer with intent to
injure, defraud, or deceive;
(180) unlawfully
removing or attempting to remove records, assets, or material from a domestic
insurer;
(181) certain
violations of the Sale of Insurance Securities Law;
(182) making
a false statement in connection with insurance with the effect of causing a
loss to the insurer;
(183) improper
disposition of certain court funds;
(184) jury
tampering;
(185) an
officer of a company who certifies that a document is true and correct, knowing
the same to be false, or any person who forges the name of an officer the seal
of a company
B. The
board shall not consider the fact of a criminal conviction as part of an
application for licensure or for renewal of licensure unless the conviction
under consideration is one of the disqualifying criminal convictions listed in
Subsection A of this rule.
C. The
board shall not deny, suspend, revoke, not renew a license or otherwise exclude
from licensure a person on the sole basis of a criminal conviction unless the
conviction under consideration is one of the disqualifying criminal convictions
listed in Subsection A of this rule.
D. Nothing
in this rule shall prevent the board from denying an application for licensure
or for renewal of licensure, or from disciplining a licensee, on the basis of a
person’s conduct, to the extent that such conduct violated the Funeral Services
Act, regardless of whether the person was convicted of a crime for such conduct
or whether the crime for which the person was convicted is listed as one of the
disqualifying criminal convictions in Subsection A of this rule.
E. In
connection with an application for licensure or for renewal of licensure, the
board shall not use, distribute, disseminate, or admit into evidence at an
administrative proceeding criminal records of any of the following:
(1) an
arrest not followed by a valid conviction;
(2) a
conviction that has been sealed, dismissed, expunged or pardoned;
(3) a
juvenile adjudication; or
(4) a
conviction for any crime other than the disqualifying criminal convictions
listed in Subsection A of this rule.
[16.64.11.14 NMAC, N, 12/28/2021]