TITLE 7 HEALTH
CHAPTER 1 HEALTH GENERAL PROVISIONS
PART 14 ABUSE,
NEGLECT, EXPLOITATION, AND DEATH REPORTING, TRAINING
AND
RELATED REQUIREMENTS FOR COMMUNITY PROVIDERS
7.1.14.1 ISSUING AGENCY: Division of Health Improvement, Department of
Health.
[7.1.14.1 NMAC - N, 07/01/14]
7.1.14.2 SCOPE: This rule is applicable to persons,
organizations or legal entities receiving developmental disability waiver funds
and developmental disability medically fragile waiver funds acting as
community-based service providers as defined in this rule.
[7.1.14.2 NMAC - N, 07/01/14]
7.1.14.3 STATUTORY AUTHORITY: Department of Health Act, Subsection E of
Section 9-7-6, Subsection D of Section 24-1-2, Subsections I, L, O, T and U of
Sections 24-1-3 and 24-1-5 NMSA 1978 of the Public Health Act as amended.
[7.1.14.3 NMAC - N, 07/01/14]
7.1.14.4 DURATION: Permanent.
[7.1.14.4 NMAC - N, 07/01/14]
7.1.14.5 EFFECTIVE DATE:
July 1, 2014, unless a later date is cited at the end of a section.
[7.1.14.5 NMAC - N, 07/01/14]
7.1.14.6 OBJECTIVE: This rule establishes standards for
community-based service providers to institute and maintain an incident
management system and employee and volunteer training programs for the
reporting of abuse, neglect, exploitation, suspicious injuries, environmentally
hazardous conditions and death.
[7.1.14.6 NMAC - N, 07/01/14]
7.1.14.7 DEFINITIONS:
A. “Abuse” including verbal abuse, means:
(1) knowingly,
intentionally, and without justifiable cause inflicting physical pain, injury
or mental anguish;
(2) the intentional
deprivation by a caretaker or other person of services necessary to maintain
the mental and physical health of a person; or
(3) sexual abuse,
including criminal sexual contact, incest, and criminal sexual penetration.
B. “Abuse, neglect, exploitation, or report of death
form” means the reporting format issued by
the division for the reporting of incidents which may relate to abuse, neglect,
or exploitation of a consumer, including suspicious injuries, or for reporting
any death.
C. “Case manager”
means the staff person designated to coordinate and monitor the individual
service plan for persons receiving community-based services.
D. “Community-based service providers” means
any person, organization, or legal entity, including mi via consultants, providing the following services, and having
any provider agreement with the department of health:
(1) “developmental
disability waiver services” means a medicaid funded home or community-based services
for persons with intellectual and developmental disabilities; and
(2) “medically
fragile waiver services” means medicaid funded home or community-based services for
persons with intellectual and developmental disabilities who are medically
fragile.
E. “Consultant” means the person
or entity supporting the mi via consumer to make informed choices among the
services offered through the mi via waiver, develop service and support plans
(SSP), and providing on-going assistance with SSP implementation.
F. “Consumer”
means any recipient of services from a community-based service provider.
G. “Department”
means the New Mexico department of health.
H. “Division”
means the department of health, division of health improvement, incident
management bureau.
I. “Employee”
means
any person whose employment or contractual service with a community-based
service provider, or with a consumer, which includes direct care or routine and
unsupervised physical or financial access to any care recipient served..
J. “Environmental hazard” means a
condition in the physical environment which creates an immediate threat to
health or safety of the individual.
K. “Exploitation” means an unjust or improper use of a person's money or
property for another person's profit or advantage, financial, or otherwise.
L. “Immediate access”
means physical or in-person direct and unobstructed access to electronic or
other access needed by employees, consumers, family members, or legal guardians
to the community-based service program’s incident management reporting
procedures or access to the division’s abuse, neglect, exploitation or report
of death form.
M. “Immediate jeopardy”
means a provider's non-compliance with one or more requirements of medicaid
participation or the provider agreement which causes, or is likely to cause,
serious injury, harm, impairment, or death to a consumer.
N. “Immediate reporting”
means reporting that is done immediately.
A report may only be delayed while the provider is taking immediate
action to prevent harm to a consumer.
O. “Incident”
means any known, alleged, or suspected event of abuse, neglect, exploitation,
suspicious injury, or any death.
P. “Incident management system” means the written policies and procedures adopted or
developed by the community-based service provider for reporting abuse, neglect,
exploitation, suspicious injuries, or for making a report of death as required
in Subsection A of 7.1.14.8 NMAC.
Q. “Mental anguish” means a relatively
high degree of mental pain and distress that is more than mere disappointment,
anger, resentment, or embarrassment, although it may include all of these, and
is objectively manifested by the recipient of care or services by significant
behavioral or emotional changes or physical symptoms.
R. “Natural support” means an uncompensated person
such as a family member, friend, or any person in a supportive relationship
with the consumer.
S. “Neglect”
means the
failure of the caretaker to provide basic needs of a person, such as clothing,
food, shelter, supervision, and care for the physical and mental health of that
person. Neglect causes, or is likely to
cause harm to a person.
T. “Non-responsible provider” means any reporter who is
reporting an incident of abuse,
neglect, exploitation, suspicious injury or death in which they are not the
responsible community-based service provider during the time of the incident.
U. “Quality assurance”
means a systematic approach to the continuous study and improvement of the
efficiency and efficacy of organizational, administrative, and clinical
practices in meeting the needs of persons served as well as achieving the
community-based service provider's mission, values and goals.
V. “Quality improvement system” means the community-based service provider’s policies and
procedures for reviewing and documenting all alleged incidents of abuse,
neglect, exploitation, suspicious injuries, and all deaths for the continuous
study and improvement of the efficiency and efficacy of organizational,
administrative, and preventative practices in employee training and reporting.
W. “Report” means any assertion or
allegation of abuse, neglect, exploitation, suspicious injuries, or report of
death made by a reporter to the incident management bureau and includes any
incident that a community-based service provider is required to report under
applicable law.
X. “Reporter”
means any person who, or any entity that, reports possible abuse, neglect,
exploitation, suspicious injury, or makes a report of death to the department’s
incident management bureau.
Y. “Restraints”
means use of a mechanical device or chemical restraints imposed, for the
purposes of discipline or convenience, to physically restrict a consumer's freedom
of movement, performance of physical activity, or normal access to his body.
Z. “Sanction”
means a measure imposed by the department on a provider, pursuant to these
requirements, in response to a finding of deficiency, with the intent of
obtaining increased compliance with these requirements.
AA. “Sexual abuse” means the inappropriate touching of a recipient of care or
services for sexual purpose or in a sexual manner, and includes kissing,
touching the genitals, buttocks, or breasts, causing the recipient of care or
services to touch another for sexual purpose, or promoting or observing for
sexual purpose any activity or performance involving play, photography,
filming, or depiction of acts considered pornographic. Sexual conduct engaged in by an employee with
a person for whom they are providing care or services is sexual abuse per se.
BB. “Substantiated” means the
verification of an allegation of abuse, neglect, or exploitation based upon a
preponderance of reliable evidence obtained from an investigation of an
allegation of abuse, neglect, or exploitation. CC. “Training curriculum” means the instruction manual or pamphlet adopted or
developed by the community-based service provider containing policies and
procedures for reporting abuse, neglect, exploitation, suspicious injury, or
any death.
DD. “Unsubstantiated” means that an allegation of abuse, neglect, and exploitation could not be verified
based upon a preponderance of reliable evidence obtained from an investigation
of a complaint of abuse, neglect, or exploitation.
EE. “Verbal abuse” means profane,
threatening, derogatory, or demeaning language, spoken or conveyed with the
intent to cause mental anguish.
FF. “Volunteer” means
any person who is not a natural support who works without compensation for a
community-based service provider and whose services includes direct care or
routine physical or financial access to any consumer serviced by that
community-based service provider.
[7.1.14.7 NMAC - N, 07/01/14]
7.1.14.8 INCIDENT MANAGEMENT SYSTEM REPORTING REQUIREMENTS
FOR COMMUNITY-BASED SERVICE PROVIDERS:
A. Duty to report:
(1) All community-based providers shall
immediately report alleged crimes to law enforcement or call for emergency
medical services as appropriate to ensure the safety of consumers.
(2) All community-based service providers,
their employees and volunteers shall immediately call the department of health
improvement (DHI) hotline at 1-800-445-6242 to report abuse, neglect, exploitation,
suspicious injuries or any death and also to report an environmentally hazardous
condition which creates an immediate threat to health or safety.
B. Reporter requirement. All community-based service
providers shall ensure that the employee or volunteer with knowledge of the
alleged abuse, neglect, exploitation,
suspicious injury, or death calls the division’s hotline to report the
incident.
C. Initial
reports, form of report, immediate action and safety planning, evidence
preservation, required initial notifications:
(1) Abuse, neglect, and exploitation,
suspicious injury or death reporting: Any person may report an allegation of abuse,
neglect, or exploitation, suspicious injury or a death by calling the
division’s toll-free hotline number 1-800-445-6242. Any consumer, family member, or legal
guardian may call the division’s hotline to report an allegation of abuse,
neglect, or exploitation, suspicious injury or death directly, or may report
through the community-based service provider who, in addition to calling the
hotline, must also utilize the division’s abuse, neglect, and exploitation or report of death form. The abuse,
neglect, and exploitation or report of death form and instructions for
its completion and filing are available at the division's website,
http://dhi.health.state.nm.us, or may be obtained from the department by
calling the division’s toll free hotline number, 1-800-445-6242.
(2) Use of abuse, neglect, and exploitation
or report of death form and notification by community-based service providers:
In addition to
calling the division’s hotline as required in Paragraph (2) of Subsection A of
7.1.14.8 NMAC, the community-based service provider shall also report the
incident of abuse, neglect,
exploitation, suspicious injury, or death utilizing the division’s abuse, neglect, and exploitation or report of
death form consistent with the requirements of the division’s abuse, neglect, and exploitation reporting
guide. The community-based service
provider shall ensure all abuse,
neglect, exploitation or death reports describing the alleged incident
are completed on the division’s abuse,
neglect, and exploitation or report of death form and received by the
division within 24 hours of the verbal report.
If the provider has internet access, the report form shall be submitted
via the division’s website at http://dhi.health.state.nm.us; otherwise it may
be submitted via fax to 1-800-584-6057.
The community-based service provider shall ensure that the reporter with
the most direct knowledge of the incident participates in the preparation of
the report form.
(3) Limited provider investigation:
No investigation beyond that necessary in order to be able to report the
abuse, neglect, or exploitation and ensure the safety of consumers is permitted
until the division has completed its investigation.
(4) Immediate action and safety planning: Upon discovery of any alleged incident of
abuse, neglect, or exploitation, the community-based service provider shall:
(a)
develop and implement an immediate action and safety plan for any
potentially endangered consumers, if applicable;
(b)
be immediately prepared to report that immediate action and safety plan
verbally, and revise the plan according to the division’s direction, if
necessary; and
(c)
provide the accepted immediate action and safety plan in writing on the
immediate action and safety plan form within 24 hours of the verbal
report. If the provider has internet
access, the report form shall be submitted via the division’s website at
http://dhi.health.state.nm.us; otherwise it may be submitted by faxing it to
the division at 1-800-584-6057.
(5) Evidence preservation: The community-based service provider shall
preserve evidence related to an alleged incident of abuse, neglect, or
exploitation, including records, and do nothing to disturb the evidence. If physical evidence must be removed or
affected, the provider shall take photographs or do whatever is reasonable to
document the location and type of evidence found which appears related to the
incident.
(6) Legal guardian or parental notification:
The responsible
community-based service provider shall ensure that the consumer’s legal
guardian or parent is notified of the alleged incident of abuse, neglect and exploitation within
24 hours of notice of the alleged incident unless the parent or legal guardian is
suspected of committing the alleged abuse, neglect, or exploitation, in which
case the community-based service provider shall leave notification to the
division’s investigative representative.
(7) Case manager or consultant notification
by community-based service providers: The responsible community-based service provider shall notify
the consumer’s case manager or consultant within 24
hours
that an alleged incident involving abuse,
neglect, or exploitation has been reported to the division. Names of other consumers and employees may be
redacted before any documentation is forwarded to a case manager or consultant.
(8) Non-responsible
reporter: Providers who are reporting an incident in
which they are not the responsible community-based service provider shall
notify the responsible community-based service provider within 24 hours of an incident or allegation of an incident
of abuse, neglect, and exploitation.
D. Incident policies: All community-based service providers shall
maintain policies and procedures which describe the community-based service
provider’s immediate response, including development of an immediate action and
safety plan acceptable to the division where appropriate, to all allegations of
incidents involving abuse, neglect, or exploitation, suspicious injury as
required in Paragraph (2) of Subsection A of 7.1.14.8 NMAC.
E. Retaliation: Any person, including but not limited to an
employee, volunteer, consultant, contractor, consumer, or their family members,
guardian, and another provider who, without false intent, reports an incident
or makes an allegation of abuse, neglect, or exploitation shall be free of any
form of retaliation such as termination of contract or employment, nor may they be
disciplined or discriminated against in any manner including, but not limited
to, demotion, shift change, pay cuts, reduction in hours, room change, service
reduction, or in any other manner without justifiable reason.
F. Quality assurance/quality improvement program for
community-based service providers: The community-based service provider shall
establish and implement a quality improvement program for reviewing alleged
complaints and incidents of abuse, neglect, or exploitation against them as a
provider after the division’s investigation is complete. The incident management program shall include
written documentation of corrective actions taken. The community-based service provider shall
take all reasonable steps to prevent further incidents. The community-based service provider shall
provide the following internal monitoring and facilitating quality improvement
program:
(1) community-based
service providers shall have current abuse, neglect, and exploitation
management policy and procedures in place that comply with the department's
requirements;
(2) community-based
service providers providing intellectual and developmental disabilities
services must have a designated incident management coordinator in place; and
(3) community-based
service providers providing intellectual and developmental disabilities
services must have an incident management committee to identify any deficiencies,
trends, patterns, or concerns as well as opportunities for quality improvement,
address internal and external incident reports for the purpose of examining
internal root causes, and to take action on identified issues.
[7.1.14.8 NMAC - N, 07/01/14]
7.1.14.9 INCIDENT MANAGEMENT SYSTEM REQUIREMENTS:
A. General: All community-based service providers shall
establish and maintain an incident management system, which emphasizes the
principles of prevention and staff involvement.
The community-based service provider shall ensure that the incident
management system policies and procedures requires all employees and volunteers
to be competently trained to respond to, report, and preserve evidence related
to incidents in a timely and accurate manner.
B. Training curriculum: Prior to an employee or volunteer’s initial
work with the community-based service provider, all employees and volunteers
shall be trained on an applicable written training curriculum including
incident policies and procedures for identification, and timely reporting of
abuse, neglect, exploitation, suspicious injury, and all deaths as required in
Subsection A of 7.1.14.8 NMAC. The
trainings shall be reviewed at annual, not to exceed 12-month intervals. The training curriculum as set forth in
Subsection C of 7.1.14.9 NMAC may include computer-based training. Periodic reviews shall include, at a minimum,
review of the written training curriculum and site-specific issues pertaining
to the community-based service provider’s facility. Training shall be conducted in a language
that is understood by the employee or volunteer.
C. Incident management system training
curriculum requirements:
(1) The
community-based service provider shall conduct training or designate a
knowledgeable representative to conduct training, in accordance with the
written training curriculum provided electronically by the division that
includes but is not limited to:
(a) an overview of the
potential risk of abuse, neglect, or exploitation;
(b) informational
procedures for properly filing the division's abuse, neglect, and exploitation or report of death form;
(c) specific
instructions of the employees’ legal responsibility to report an incident of
abuse, neglect and exploitation, suspicious injury, and all deaths;
(d) specific
instructions on how to respond to abuse, neglect, or exploitation;
(e) emergency action
procedures to be followed in the event of an alleged incident or knowledge of
abuse, neglect, exploitation, or suspicious injury.
(2) All current
employees and volunteers shall receive training within 90 days of the effective
date of this rule.
(3) All new employees
and volunteers shall receive training prior to providing services to consumers. D. Training documentation: All community-based service providers shall
prepare training documentation for each employee and volunteer to include a
signed statement indicating the date, time, and place they received their
incident management reporting instruction.
The community-based service provider shall maintain documentation of an
employee or volunteer's training for a period of at least three years, or six
months after termination of an employee's employment or the volunteer’s
work. Training curricula shall be kept
on the provider premises and made available upon request by the
department. Training documentation shall
be made available immediately upon a division representative's request. Failure to provide employee and volunteer
training documentation shall subject the community-based service provider to
the penalties provided for in this rule.
E. Consumer and guardian orientation packet: Consumers, family
members, and legal guardians shall be made aware of and have available
immediate access to the community-based service provider incident reporting
processes. The community-based service
provider shall provide consumers, family members, or legal guardians an
orientation packet to include incident management systems policies and
procedural information concerning the reporting of abuse, neglect,
exploitation, suspicious injury, or death.
The community-based service provider shall include a signed statement
indicating the date, time, and place they received their orientation packet to
be contained in the consumer’s file. The
appropriate consumer, family member, or legal guardian shall sign this at the
time of orientation.
F. Availability of incident management and abuse,
neglect, exploitation, suspicious injury, or report of death reporting
information:
All community-based service providers shall provide written information
to be furnished by the division at its website, which states all incident
management reporting procedures, including contact numbers and internet
addresses. The written information shall
be on-site and available to staff.
[7.1.14.9 NMAC - N, 07/01/14]
7.1.14.10 ACCESS AND COOPERATION TO FACILITATE DEPARTMENT INCIDENT
INVESTIGATIONS:
A. The
department will conduct incident investigations of community-based service
providers subject to these requirements.
These investigations may be either announced or unannounced.
B. All
community-based service providers programs shall facilitate immediate physical
or in-person access, and assist with scheduling of interviews, by department
personnel investigating incidents to all of the providers:
(1) formal and informal records, regardless of
media, including but not limited to, financial records, all consumer records,
individual service plans, volunteer and personnel records, board and or
committee minutes, incident reports, quality assurance activities, client
satisfaction surveys, and agency policy and procedures manuals;
(2) employees and volunteers with knowledge of the incident;
(3) necessary clients currently receiving
services, guardians, representatives, and family members with knowledge of the incident; and
(4) administrative and service delivery sites.
[7.1.14.10 NMAC - N, 07/01/14]
7.1.14.11 CONSEQUENCES OF COMMUNITY-BASED SERVICE PROVIDER
NON-COMPLIANCE:
A. The
department may sanction a community-based service provider in accordance with
applicable law if the community-based service provider fails to report
incidents of abuse, neglect, exploitation, suspicious injury, or any death;
fails to provide or maintain evidence of an existing incident management system
and employee and volunteer training documentation as set forth by this rule;
for any failure to adequately protect consumers from abuse, neglect or
exploitation; or for any other violation of this rule.
B. Such
sanctions may include a directed plan of correction, intermediate sanctions, or
civil monetary penalty up to five thousand dollars ($5,000) per instance, or
high level sanctions up to and including termination or non-renewal of any
provider agreement with the department or other governmental agency.
C. All substantiated
incident investigations conducted by the department hold the community-based
service provider responsible for the actions of the employee, volunteer, or
contractor with the following exception:
any employee, volunteer, or contractor found to have caused the abuse,
neglect, or exploitation of a consumer shall be found individually responsible
independent of the community-based service provider when the community-based
service provider has complied with all requirements of this rule, and the
employee acts outside of the provider’s system.
When this occurs, the individual shall be subject to the Employee Abuse
Registry Act, Sections 29-27-1 through 29-27-8 NMSA 1978, or referred to the appropriate
professional licensing board and law enforcement where appropriate.
[7.1.14.11 NMAC - N, 07/01/14]
7.1.14.12 NOTIFICATION OF INVESTIGATION
RESULTS: The division
will inform the provider, the guardian, or alleged victim, the case manager or
consultant, the developmental disabilities supports division regional office,
and the reporter of the conclusion reached by the investigator(s) when the
report is final. The responsible
provider must notify the alleged perpetrator.
[7.1.14.12 NMAC - N, 07/01/14]
7.1.14.13 INFORMAL RECONSIDERATION OF FINDINGS:
A. An aggrieved
person or provider agency may request an informal reconsideration of findings
(IRF) of a decision made by the division regarding a substantiation of abuse,
neglect, or exploitation in accordance with the provisions set forth in this
section.
B. A request for an
IRF must be submitted in writing along with all relevant evidence to be
considered by the bureau within 10 calendar days of the date of the letter of
substantiation. The bureau may reverse
the substantiation at any time at or before the IRF review.
C. Informal
reconsideration of findings process.
(1) The person conducting
the review shall be neutral and have no direct involvement with the
investigation or substantiation.
(2) The person conducting
the IRF shall issue a written decision within 30 days of the review, giving the
reason why the substantiation, by preponderance of evidence, is modified,
affirmed, or reversed. The written
decision will be mailed to the aggrieved party and placed in the case record no
later than the 30th day after receipt of the request for the IRF.
(3) The decision by the
person conducting the IRF is final and non-appealable except as otherwise
provided for by law.
[7.1.14.13 NMAC - N, 07/01/14]
7.1.14.14 CONFIDENTIALITY:
A. In the case of substantiated cases of abuse,
neglect, or exploitation, the written report may be shared publicly upon
request and subject to all other applicable federal and state laws and
regulations. Unsubstantiated incident investigation
reports shall not be shared publicly in relation to any accused person or
provider other than to confirm that an allegation of abuse, neglect, or
exploitation was unsubstantiated.
B. All consumer
information reviewed or obtained in the course of an investigation of a
community-based service provider is confidential in accordance with all
applicable federal and state laws and regulations and with all applicable
contract provisions. If the consumer’s identity may not be
sufficiently de-identified even after redaction, then the report may not be
released except upon the request of that consumer or their legally authorized
representative. C. Other
confidential information includes, but is not limited to: identity of the reporter of the alleged abuse, neglect, and exploitation if confidentiality
is requested, personnel records, dates of birth, driver’s license numbers,
social security numbers, personal addresses, and telephone numbers, the
community-based service provider’s internal incident investigation, if any is
received by the department, financial documents, and proprietary business
information.
[7.1.14.14 NMAC - N, 07/01/14]
7.1.14.15 SEVERABILITY: If any provision or application of 7.1.14
NMAC is held invalid, the remainder, or its application to other situations or
persons, shall not be affected.
[7.1.14.15 NMAC - N, 07/01/14]
HISTORY OF 7.1.14 NMAC: [RESERVED]