New Mexico Register / Volume XXXVII,
Issue 14 / July 28, 2026
This is an Emergency
Amendment to 8.9.4 NMAC, Section 3 and 31 effective 07/01/2026.
8.9.4.3 STATUTORY AUTHORITY: The regulations set forth herein, which
govern the licensing of facilities providing child care to children, have been
promulgated by the secretary of the New Mexico Early Childhood Education and
Care Department, by authority of the Early Childhood Education and Care
Department Act, Section 9-29-1 to 9-29-12 NMSA 1978; Section 3-21-1 NMSA
1978;, Section 59A-52-18 NMSA 1978; and Subsection D of Section 24-1-2 NMSA
1978, Subsection I of Section 24-1-3 NMSA 1978 and Section 24-1-5 NMSA 1978 of
the Public Health Act, Sections 24-1-1 to 24-1-22, NMSA 1978, as amended.
[8.9.4.3 NMAC - N,
11/01/2022; A/E, 07/01/2026]
8.9.4.31 LICENSURE REQUIREMENTS FOR HOMES:
A. LICENSING
REQUIREMENTS:
(1) APPLICATION
FORM: An applicant will complete an application form provided by the licensing
authority and include payment for the non-refundable application fee. Applications will be rejected unless all
supporting documents are received within six months of the date indicated on
the application. A 45 day extension will
be granted if the licensee provides documentation to the licensing authority
that documents were submitted to the appropriate agencies in a timely manner
but, through no fault of their own, they have not received responses from these
agencies.
(2) A
home will submit a new application to the licensing authority before changing
anything required to be stated on the license such as dates, capacity,
operator, or address.
(3) BACKGROUND
CHECK: In addition to the basic
requirements at 8.9.4.19 NMAC of the general provisions an applicant will apply
for a national criminal records check.
The licensing authority will provide a copy of the most current version
of the department’s background check and employment history verification
provisions (8.9.6 NMAC), regulations, fingerprint instructions, and forms for
recording an employment history. The
licensee will be responsible for obtaining background checks on all staff
members, educators, volunteers, and prospective staff members, educators,
volunteers, any person who may have unsupervised physical access to children,
and all adults residing in the home as per the requirements outlined in the
department’s most current version of the background check and employment
history verification provisions. A
household member reaching the age of 18 must submit their background check in
accordance with the most current provisions of 8.9.6 NMAC within 30 days after
their eighteenth birthday. All
requirements of the current background check and employment history
verification provisions pursuant to 8.9.6 NMAC must be met prior to the
issuance of an initial license. Prior to
a staff member’s employment, a staff member must receive a notice of
provisional employment or obtain a background check in accordance with 8.9.6
NMAC. A background check must be
conducted in accordance with 8.9.6 NMAC at least once every five years on all
required individuals.
(4) ZONING
AND OTHER APPROVALS: An applicant will
have:
(a) current
written [zoning approval] verification of zoning compliance from
the appropriate city, county or state authority; and
[(b) current written approval of the state fire marshal office or
other appropriate city, county or state fire-prevention authority if
applicable;]
[(c)] (b) current written approval from the New Mexico
environment department or other environmental health authority for: (i) Private
water supply, if applicable; (ii) Private waste or sewage disposal, if
applicable; and (iii) A swimming pool, if applicable.
(5) SCHEDULE: All applications for a new license will
include a description of the home’s proposed activities and schedule.
(6) INITIAL
SURVEY: The licensing authority will
schedule a survey for a home when it receives a complete application with all
supporting documents.
B. CAPACITY OF A
HOME:
(1) The
number of children in a home, either in total or by age, will not exceed the
capacity stated on the license.
(2) The
licensing authority will count all children in the care of the licensed home,
including the educator’s own children under the age of six, in the capacity of
a home, even if the children are on a field trip or other outing outside the
home. The licensed capacity must not be
exceeded by the presence of non-residential school age children.
(3) A
home may be licensed for up to 12 children.
(4) A
home licensed as a family day care home under these regulations providing care
for a maximum capacity of six children may care for up to four children under
the age of two providing a second educator is present in the home and the home
is licensed to provide such care. A home
licensed as a group day care home under these regulations providing care for a
maximum of 12 children may care for up to four children under age two providing
a second educator is present in the home and the home is licensed to provide
such care.
(5) A
home must have 35 square feet of activity and sleeping space per child,
excluding bathrooms, kitchens, halls and other built-in fixtures and offsets,
with total capacity limited to no more than 12 children. A home must have at least one bathroom with a
toilet and sink. For a home licensed for no more than six children, one
activity room will be measured. For a home licensed for 12 children, no more
than two rooms will be measured.
Children shall not be cared for in unlicensed areas of the home.
(6) The
home will have an outdoor play area, which must be contained by a fence. Outside play areas must be on the premises or
approved by the licensing authority.
C. INCIDENT
REPORTING REQUIREMENTS:
(1) The
licensee will report to the appropriate authorities the following
incidents. After making a report to the
appropriate authorities, the licensee shall notify the licensing authority of
the incident giving rise to its report as soon as possible but no later than 24
hours after the incident occurred. A
report should first be made by telephone and followed with written
notification. The licensee shall report
any incident that has threatened or could threaten the health and safety of
children and staff members, such as, but not limited to:
(a) a
lost, or missing or unattended child;
(b) a
serious injury;
(c) the
abuse or neglect of a child;
(d) fire,
flood, or other natural disaster that creates structural damages to a home or
poses a health hazard;
(e) any
of the illnesses on the current list of notifiable diseases and communicable
diseases published by the office of epidemiology of the New Mexico department
of health;
(f) any
legal action against a home, household member, or staff members;
(g) any
incident that could affect the background check eligibility of any cleared
person related to this license;
(h) the
use of physical or mechanical restraints, unless due to documented emergencies
or medically documented necessity; or
(i) any known change in an educator’s
health condition or use of medication that impairs his or her ability to
provide for the health, safety or welfare of children in care.
(2) A
home will notify parents or guardians in writing of any incident, including
notifiable illnesses, that has threatened the health or safety of children in
the home. The licensee shall ensure that
it obtains parent or guardian signatures on all incident reports within 24
hours of the incident. The licensee
shall immediately notify the parent or guardian in the event of any head
injury. Incidents include, but are not
limited to, those listed in Paragraph (1) of Subsection C of 8.9.4.31 NMAC.
(3) Incident
reports involving suspected child abuse and neglect must be reported
immediately to children’s protective services and local law enforcement. The licensing authority follows written
protocols/procedures for the prioritization, tracking, investigation and
reporting of incidents, as outlined in the complaint investigation protocol and
procedures.
[8.9.4.31 NMAC - N,
11/01/2022; A/E, 07/01/2026]