New Mexico Register / Volume XXXIV, Issue 11 / June 13, 2023
NOTICE
OF PROPOSED RULEMAKING
NOTICE IS HEREBY
GIVEN that the New Mexico Developmental Disabilities Council Office of Guardianship
(NMDDC OOG) will hold a public rule hearing on July 31, 2023. The hearing will begin at 10:00 a.m. and will
be held at the NMDDC OOG at 625 Silver Avenue SW, Suite 100, Albuquerque, NM
87102-3185, and via Zoom (https://us02web.zoom.us/j/82414945939?pwd=dGtOS05rdWVrTXYzaG5UM0ZTMlN1QT09,
Meeting ID: 824 1494 5939, Passcode: 090711, One tap mobile +17193594580,,82414945939#,,,,*090711#
US). Following the public rule hearing, the NMDDC OOG will convene an executive
leadership meeting to adopt the rules.
Statutory
Authority: Legal
authority for this rulemaking may be found in the Office of Guardianship Act,
Section 28-16B-3 NMSA 1978,
among other provisions which specifically authorize the NMDDC OOG to
“promulgate rules in accordance with the State Rules Act [Chapter 14, Article 4
NMSA 1978] to carry out the provisions of the Office of Guardianship Act.”
Purpose: The purpose of the
public rule hearing is to take public comments regarding the proposed repeal
and replacement of 9.4.21 NMAC – GUARDIANSHIP SERVICES. Every person
attending the public rule hearing will be given the opportunity to present
their comments. Interested persons may submit their written comments to the
NMDDC OOG at 625 Silver Avenue SW, Suite 100, Albuquerque, NM 87102-3185, or
DDC.OOG-Rulemaking@ddc.nm.gov. If submitting written comments by email, please
indicate in the subject line the number and section of each rule(s) for which
you are providing comments. Written comments must be received no later than
5:00 p.m. on July 30, 2023. Any written comments received will become part
of the rulemaking record, be posted to the New Mexico Sunshine Portal, and be
accessible to the public.
Special Needs: Any person with a
disability who needs a reader, amplifier, qualified signed language
interpreter, auxiliary aid, or service to attend or participate in the public
rule hearing should contact the NMDDC OOG at DDC.OOG-Rulemaking@ddc.nm.gov or
(505) 526-0551 at least ten (10) business days prior to the hearing.
Details for
Obtaining a Copy of Proposed Rules: The proposed rules are available at the
NMDDC OOG located at 625 Silver Avenue SW, Suite 100, Albuquerque, NM
87102-3185, and are posted on the NMDDC OOG’s website at (URL). To request that
a copy of the proposed rules be sent to you by mail or email, please contact
the NMDDC OOG at DDC.OOG-Rulemaking@ddc.nm.gov or (505) 526-0551.
Summary of
Proposed Repeal and Replacement: The NMDDC OOG proposes to repeal and
replace 9.4.21 NMAC – Guardianship Services as follows:
9.4.21.7 Definitions.
Revising the definition of “complaint”; defining “comprehensive service
review”, “corrective action plan”, and “service provider”; and deleting the
definitions of “complaint against the office of guardianship”, “comprehensive
evaluation”, “contracted guardianship provider”, “contractor”, and “designated
entity”.
9.4.21.8 Eligibility.
Repealing language that is unclear and outdated and replacing it with language
that uses defined terms and comports with the United States Department of
Health and Human Services’ guidelines on poverty.
9.4.21.9 Prioritization of
Service. Repealing language that uses the terms “high need guardianships”
and “low need guardianships” and replacing it with the NMDDC OOG’s criteria
that are used when prioritizing applications.
9.4.21.10 Designation of
Service Area. Repealing language that specifies the area within which the
NMDDC OOG provides services, and adding language that states services are
provided within the jurisdiction of New Mexico courts.
9.4.21.11 Services to Be
Provided by the NMDDPC Office of Guardianship. Repealing section.
9.4.21.12 Requirements of
Contracted Guardianship Providers. Repealing section.
9.4.21.13 Referral Process.
Repealing section.
9.4.21.14 Complaints Against
a Contracted Provider with the NMDDPC Office of Guardianship. Repealing
language that describes outdated processes and that limits the scope of the
complaint process and replacing it with language that clearly communicates how
the NMDDC OOG responsibly, promptly, and impartially handles and investigates
complaints.
9.4.21.15 Complaints Against
the NMDDPC Office of Guardianship. Repealing section.
9.4.21.16 Transfer of Protected
Person from a Private Pay Guardianship to a Program Funded Through the NMDDPC
Office of Guardianship. Repealing section.
9.4.21.17 Requests for
Information. Repealing section.
9.4.21.18 Comprehensive
Evaluations. Repealing section.
9.4.21.19 Comprehensive
Service Reviews. Adding a new section with the minimum requirements of
personnel that conduct comprehensive service reviews (CSR), the components of a
CSR, and the provision of a CSR report.
9.4.21.20 Corrective Action
Plans. Adding a new section to outline when the NMDDC OOG may require a
service provider to complete a corrective action plan upon failure to provide
services in accordance with the service agreement or within the scope of the
order granted by the court.
TITLE 9 HUMAN
RIGHTS
CHAPTER 4 PERSONS
WITH DISABILITIES
PART 21 GUARDIANSHIP
SERVICES
9.4.21.1 ISSUING
AGENCY:
New Mexico Developmental Disabilities [Planning] Council Office
of Guardianship ([NMDDPC] NMDDC office of guardianship).
[9.4.21.1 NMAC – Rp, 9.4.21.1 NMAC, XX/XX/XXXX]
9.4.21.2 SCOPE: These rules apply to
all New Mexico residents and other New Mexico [state] agencies
requesting guardianship services from the [NMDDPC] NMDDC office
of guardianship and other private businesses that contract directly with the [NMDDPC]
NMDDC office of guardianship to provide guardianship services.
[9.4.21.2 NMAC – Rp, 9.4.21.2 NMAC, XX/XX/XXXX]
9.4.21.3 STATUTORY
AUTHORITY:
Section 28-16B-1 through 28-16B-6 NMSA 1978 permits the [NMDDPC] NMDDC
office of guardianship to promulgate rules in accordance with the State Rules
Act to carry out the provisions of the Office of Guardianship Act.
[9.4.21.3 NMAC – Rp, 9.4.21.3 NMAC, XX/XX/XXXX]
9.4.21.4 DURATION: Permanent.
[9.4.21.4 NMAC – Rp, 9.4.21.4 NMAC, XX/XX/XXXX]
9.4.21.5 EFFECTIVE DATE: April 14, 2006,
unless a later date is cited at the end of a section.
[9.4.21.5 NMAC – Rp, 9.4.21.5 NMAC, XX/XX/XXXX]
9.4.21.6 OBJECTIVE: The objective of [this
rule] these rules is to establish standards for the provision
of guardianship and legal services [to income and resource eligible
incapacitated adults who are residents of the state of New Mexico, when there
are no lesser forms of intervention, such as a power of attorney or surrogate
decision maker, available,] and [to monitor contracts that provide
guardianship services] the monitoring of service providers.
[9.4.21.6 NMAC – Rp, 9.4.21.6 NMAC, XX/XX/XXXX]
9.4.21.7 DEFINITIONS: Unless defined below, terms used in 9.4.21 NMAC correspond
to those defined in Section 45-5-101 (2009) NMSA 1978, Section 45-1-201 NMSA
1978, or in Section 43-1-15 NMSA 1978. The following words and terms, when
used in this part, shall have the following meanings [unless the context
clearly indicates otherwise.]:
[A. “Complaint”
means an allegation of wrongdoing by a contractor or a violation of the
contract with the NMDDPC office of guardianship and the contractor, including
but not limited to:
(1) failure to provide appropriate
services;
(2) violations of the civil rights of the
wards; and
(3) abuse, neglect or exploitation of the
ward]
[B. “Complaint against the office of
guardianship” means an allegation of wrongdoing by the NMDDPC office of
guardianship or its staff, including but not limited to:
(1) failure to appropriately monitor and
supervise contractors;
(2) violations of the due process rights
of the protected person or contractor; and
(3) failure to comply with complaint
procedures as set forth herein.]
[C. “Comprehensive
evaluation” is an assessment using a variety
of diagnostic tools to determine the appropriate level of intervention, if any,
in order to maximize self-reliance and independence
for a [ward] protected person as mandated by, Section 45-5-301.1 (2009) NMSA
1978.]
[D. “Contracted
guardianship providers” means some
private/public entity or individual under
contract with the NMDDPC office of
guardianship to act as guardian for an adjudicated incapacitated person who has
no family or friends willing, able and appropriate to be his/her guardian.]
[E. “Contractor”
means an entity or individual under a contract with the NMDDPC office of
guardianship to provide some type of guardianship service; i.e., attorneys,
court visitors, or guardians.]
[F. “Designated
entity” is a person or organization contracted or
appointed by the NMDDPC office of guardianship to conduct the comprehensive
evaluations.]
A. “Complaint”
means an individual’s report about the actions of a NMDDC office of
guardianship service provider that allegedly harm the protected person, that do
not support a person-centered approach, or that violate any contractual
requirements, statutes, rules, regulations, or standards for guardianships.
B. “Comprehensive
service review” means annual
monitoring activities to ensure a professional guardian complies with service
agreements, and statutory and regulatory duties.
C. “Corrective action
plan” means a detailed plan of
action that a professional guardian must complete to resolve noncompliance
issues with minimum legal or contractual requirements, or standards of practice
for guardianship services.
D. “Professional guardian” means an individual or
entity that serves as a guardian for more than two individuals who are not
related to the guardian by marriage, adoption, or third degree of blood or
affinity.
E. “Protected person” means a person eighteen years
of age or older for whom a guardian or conservator has been appointed or other
protective order has been made.
F. “Service provider” means an entity
or individual under a service agreement with the NMDDC office of guardianship
to provide guardianship or legal services.
[9.4.21.7 NMAC – Rp, 9.4.21.7 NMAC, XX/XX/XXXX]
9.4.21.8 ELIGIBILITY:
[A. The alleged
incapacitated person must be 18 years old to qualify for services from the
NMDDPC office of guardianship.
B. The
alleged incapacitated person must be financially and otherwise eligible for medicaid or a similar public benefit.
C. For
a guardianship where the proposed guardian is not a contracted service
provider, to obtain legal services the proposed guardian’s household income must not exceed two hundred percent of the federally established poverty level as that term is
defined by the federal HHS poverty guidelines.
(1) Proof
of income is required and is determined by the following:
(a) providing
the NMDDPC
office of guardianship a copy of
the proposed guardian’s most
recent federal income tax return and proof of all income and benefits
such as unemployment compensation, child support, food stamps or social
security income; or, if no income tax return, by completing a financial
eligibility form provided by the office of guardianship; or
(b) proof
of qualification by the proposed guardian under any federal or state program
with income restrictions equal to or greater than that required above.
(2) At
the discretion of the director of the NMDDPC office of guardianship, exceptions
may be made for financial hardship.
(3) The
NMDDPC
office of guardianship may develop
a sliding-fee scale for private guardianships for persons who do not meet
income eligibility guidelines.
(4) This program
is for low income New Mexicans with very limited resources who are unable to
pay for private legal services to be appointed as the guardian. The proposed guardian will be required to
attest to not having net liquid assets after appropriate exclusions (which are
the principal residence, vehicles used for transportation, assets used in
producing income and any other asset exempt from attachment under state or
federal law) to pay for the legal services.
Services may be declined to a proposed guardian whose income is at or
below two hundred percent of the federal poverty level if evidence exists of
sufficient resources to pay for private legal services.]
A. Any
person seeking guardianship and legal
services from the NMDDC office of guardianship for an alleged incapacitated
person must submit an application, including any
required supporting documentation. The
application must meet the following requirements to qualify for services:
(1) The alleged incapacitated person must
be 18 years old and physically present in New Mexico;
(2) For
a guardianship where the proposed guardian is a professional guardian, the
alleged incapacitated person must be income eligible and not exceed two-hundred percent of the federally-established poverty level
as the United States department of health and human services poverty guidelines
define that term;
(3) For a guardianship where the proposed
guardian is not a professional guardian, both the alleged incapacitated
person’s and the proposed guardian’s household income must not exceed two-hundred percent of the federally-established poverty
level as the United States department of health and human services poverty
guidelines define that term;
(4) For a guardianship where the proposed
guardian is not a professional guardian, the applicant must provide a copy of
both the alleged incapacitated person’s and each household member’s most recent
federal income tax return, or proof of all income; and
(5) For a guardianship where the proposed
guardian is a professional guardian, the applicant must provide proof of income
of the alleged incapacitated person.
B. The
NMDDC office of guardianship may make exceptions to eligibility requirements at
the discretion of the director.
C. Prior to providing services, the
NMDDC office of guardianship will perform a legal sufficiency evaluation,
pursuant to Chapter 45 of the Uniform Probate Code NMSA 1978.
[9.4.21.8 NMAC – Rp, 9.4.21.8 NMAC, XX/XX/XXXX]
9.4.21.9 PRIORITIZATION OF [SERVICE]
SERVICES:
[A. In general, service will
be provided based on the date of application.
B. When
service requests exceed capacity, funding or resources,
individuals in the categories noted in Subparagraph C below will be prioritized
to receive the first available services, as appropriate.
C. Priority
categories:
(1) high need guardianships:
(a) high
need for a guardian of last resort (with no family member or other willing, able
and appropriate to serve as guardian) for an adult protective services (APS)
referral, military veteran, Jackson class member (former resident of the state
training schools from 1987 to 1997), Foley referral (former resident of the
state training schools who was discharged between 1970 and 1987), and others;
(b) high need
for a guardian with a family member or other willing, able and appropriate to
serve as guardian for a military veteran, Jackson class member or Foley
referral (does not include others);
(2) lesser need guardianships:
(a) lesser need
for a guardian of last resort for an APS referral, military veteran, Jackson
class member or Foley referral (does not include others);
(b) lesser
need for guardian with a family member or other willing, able and appropriate
to serve as guardian for a military veteran, Jackson class member or Foley
referral (does not include others); requests for legal services paid by the
state seeking to appoint family members or other willing, able and appropriate
to serve as guardian are not in the priority categories unless the person to be
served is a military veteran, Jackson class member or Foley referral.
D. If
service requests in general, including those from the Subsection C categories
above, exceed the NMDDPC office of guardianship’s ability to provide services
due to limited funding or resources, the NMDDPC office of guardianship may
prioritize the requests by rating them according to a referred individual’s
need for guardianship. Rating criterion
may include such factors as the status of an individual’s support system,
services, finances, medical needs, and safety and stability of placement or
residence.]
A. In general, the NMDDC office of guardianship provides
services based on the date the office of guardianship receives a completed
application packet, which means all required documentation in addition to the
application forms.
B. When
service requests exceed capacity, funding, or resources, the NMDDC office of
guardianship will prioritize applications that meet the following criteria:
(1) Agency referrals: Applications received from federal
or state agencies, including the New Mexico children, youth & families
department, New Mexico aging and long-term services department, and New Mexico
department of health;
(2) Veterans: Applications received on behalf of
alleged incapacitated persons who served in the armed forces;
(3) Class action members: Applications received on behalf of
alleged incapacitated persons or protected persons who are members of a class
action lawsuit in which the state has reached a settlement agreement to provide
services to the class members;
(4) Other priority considerations: The NMDDC office of guardianship
may prioritize applications to meet public health demands or other unforeseen
circumstances; and
(5) Emergency applications: Regardless of capacity, funding,
or resources, the NMDDC office of guardianship will immediately provide
services when an applicant submits an affidavit for emergency prioritization
and the office of guardianship determines that the application likely meets the
requirements for temporary guardianship, pursuant to Section 45-5-310 NMSA
1978.
[9.4.21.9 NMAC – Rp, 9.4.21.9 NMAC, XX/XX/XXXX]
9.4.21.10 DESIGNATION OF SERVICE AREA:
[Services are to be provided throughout the state of New Mexico. The NMDDPC office
of guardianship recognizes the individual sovereignty of each tribe and pueblo
in the state of New Mexico.] The NMDDC office of guardianship provides
services throughout New Mexico within the jurisdiction of New Mexico courts.
[9.4.21.10 NMAC – Rp, 9.4.21.10 NMAC, XX/XX/XXXX]
9.4.21.11 [SERVICES TO BE PROVIDED BY THE NMDDPC OFFICE OF
GUARDIANSHIP:
A. The provision of adult guardianship
services to income eligible, incapacitated persons as follows:
(1) contracting with attorneys to
petition for the appointment of probate code guardians;
(2) contracting with entities/individuals
to serve as probate code guardians;
(3) contracting with entities/individuals
to serve as visitors (court visitors) in probate code guardianship proceedings;
(4) contracting with attorneys to serve
as guardian ad litem in probate code guardianship proceedings;
(5) serving as an interested person
pursuant to Subsection 6 of Section 28-16B-3, NMSA 1978;
(6) identifying available persons to
serve as mental health treatment guardian;
(7) contracting to provide for
recruitment and training for persons interested in serving as mental health
treatment guardians;
(8) providing information regarding the
duties and responsibilities of probate code guardianship, including less
restrictive alternatives; and
(9) investigating and addressing
complaints made against the NMDDPC office of guardianship contractors.
B. The provision of recruitment and
training for persons interested in serving as probate code guardians.
C. The provision of information
regarding the duties and responsibilities of probate code guardianship,
including less restrictive alternatives.
D. The provision of investigative
measures/ processes to address complaints made against entities and individuals
providing contracted guardianship services.]
[RESERVED]
[9.4.21.11 NMAC – Repealed, XX/XX/XXXX]
9.4.21.12 [REQUIREMENTS OF CONTRACTED GUARDIANSHIP PROVIDERS:
A. meet RFP Requirements when published;
B. meet office of guardianship requirements including but
not limited to:
(1) comply with all the terms of one’s
contract;
(2) agree to be paid at the state
approved rate;
(3) must comply with the Caregivers
Criminal History Screening Act (See NMSA, 1978 29-17-2);
(4) must become a registered guardian
within 18 months after the award of a contract;
(5) assure the civil rights of the
incapacitated persons;
(6) guarantee access to all records on
incapacitated persons assigned through the office of guardianship; and
(7) comply with the office of
guardianship individual caseloads, standards of practice and ethics.] [RESERVED]
[9.4.21.12
NMAC – Repealed, XX/XX/XXXX]
9.4.21.13 [REFERRAL
PROCESS: Any person interested in the well being of an alleged incapacitated person, and seeking
guardianship services to be paid for by the NMDDPC office of guardianship, must
submit or have submitted a completed application form and provide supporting
documentation to the NMDDPC office of guardianship.] [RESERVED]
[9.4.21.13
NMAC – Repealed, XX/XX/XXXX]
9.4.21.14 COMPLAINTS AGAINST A [CONTRACTED]
SERVICE PROVIDER WITH THE [NMDDPC] NMDDC OFFICE OF GUARDIANSHIP:
[A. A complaint shall be made in writing by the client or
another person on behalf of the client, including but not limited to a friend,
relative, advocate, or other interested person, such as a caregiver or
provider. An exception to the
requirement that a complaint shall be made in writing shall be made if a
reasonable accommodation is necessary.
B. Except as provided in Subsection D
of 9.4.21.14 NMAC, below, prior to filing a complaint against a provider
contracting with the NMDDPC office of guardianship, individuals shall first try
to resolve their complaints with the contracted provider through that
provider’s grievance process.
C. If the complaining party and
contractor are unable to reach a resolution or agreement then the complaining
party may file a complaint with the office of guardianship and may file a copy
with the contractor.
D. Exceptions shall be made to
Subsections A & B of 9.4.21.14 NMAC when the NMDDPC office of guardianship
has reason to believe that an emergency situation
exists or that a delay of the investigation could result in harm to the
protected person or retaliation by the contractor.
E. The complaint should include as much
information as possible, including the following:
(1) name of the incapacitated person;
(2) name of the contact information for
the individual making the complaint on behalf of the incapacitated person;
(3) relationship of the complaining party
to the incapacitated person;
(4) name of the individual contractor
against whom the complaint is being made;
(5) name of the party who has attempted
to resolve the complaint, if known;
(6) what actions have been taken to
attempt to resolve the complaint;
(7) details of the complaint including
the alleged wrongdoing, the involved parties and when and where the wrongdoing
occurred;
F. The complaint made to the office of
guardianship may be submitted by mail or fax unless a reasonable accommodation
is necessary.
G. In order to
preserve the confidentiality of the incapacitated person, the complaint shall
be submitted to: The NMDDPC Office of
Guardianship; 810 W. San Mateo, Ste. C; Santa Fe, NM 87505-4144; (505)
476-7324; (505) 476-7322 (Fax).
H. Upon receipt of a verbal or written
complaint, the NMDDPC office of guardianship shall:
(1) acknowledge receipt of a the complaint in
writing;
(2) notify all parties involved; and
(3) initiate an investigation within 15
working days of the filing of the complaint with the NMDDPC office of the
guardianship;
(4) where sufficient information is
provided to allow the NMDDPC office of guardianship to continue the
investigation, the NMDDPC office of guardianship will make further inquiries if
possible or discontinue the investigation; justification for closure of
investigations based on insufficient information will be documented.
I. A determination decision shall be
made within 60 working days after the complaint is filed with the NMDDPC office
of guardianship unless a shorter time frame is required to protect the
protected person.
J. A determination decision shall include:
(1) the decision made;
(2) the basis for the decision;
(3) notice of the complaining party’s
right to file a complaint about the actions taken by the NMDDPC office of
guardianship related to the investigational process pursuant to 9.4.21.15 NMAC;
(4) further actions to be taken by the
NMDDPC office of guardianship and the contractor which may include, but shall
not be limited to:
(a) the imposition of a corrective action
plan on the contractor; and
(b) a referral of the complaint to other
agencies for investigation and prosecution.
K. Persons objecting to the process of
the complaint investigation taken by the NMDDPC office of guardianship may file
a grievance against the NMDDPC office of guardianship with the New Mexico human
services department pursuant to 9.4.21.15 NMAC below.
L. None of these regulations restrict
the due process rights of an individual to request a less restrictive
guardianship or to overturn the decision of a guardianship contractor or the
NMDDPC office of guardianship through a court of law.]
A. Right to file a complaint: A protected person or any
interested party may file a complaint against a service provider with the NMDDC
office of guardianship at any time.
B. Filing a complaint:
(1) If
the complaint is against a professional guardian, the complainant must attempt
to resolve the issue through the professional guardian’s internal complaint
procedures before submitting a complaint with the NMDDC office of guardianship.
(a) The professional guardian must notify the
NMDDC office of guardianship within three days of receiving the complaint.
(b) The professional guardian must complete their internal complaint
process and notify the NMDDC office of guardianship of the outcome within 30
days of receiving the complaint.
(c) Exceptions
to Paragraph (1) of Subsection B of 9.4.21.14 NMAC shall be made when the NMDDC
office of guardianship determines that delaying their investigation of the
complaint could cause harm to the protected person.
(2) The complainant must complete the
NMDDC office of guardianship’s complaint form.
(3) The NMDDC office of guardianship shall
make reasonable accommodations for the complainant when filing their complaint,
including assisting the complainant with completing the form.
(4) The NMDDC office of guardianship
shall acknowledge receipt of the complaint in writing, notify all parties
involved, including the complainant, the protected person, and the service
provider, and initiate an investigation pursuant to the Office of Guardianship
Act, Section 28-16B-6 NMSA 1978.
C. Investigating a Complaint: The NMDDC office of
guardianship shall:
(1) Fairly,
impartially, and objectively investigate complaints in accordance with its
policies and procedures;
(2) Based
on information gathered during the investigation, determine whether the service
provider failed to comply with:
(a) The statutes, rules, or regulations
pertaining to adult guardianships;
(b) The contractual requirements outlined
in the service agreement between the service provider and the NMDDC office of
guardianship; or
(c) National guardianship association
standards.
(3) Notify the complainant, the
protected person, and the service provider in writing of the NMDDC office of
guardianship’s decision.
D. Declining
to Investigate: The NMDDC office of guardianship
will notify the complainant in writing if it declines to investigate the
complaint and may refer their complaint to other agencies for investigation or
prosecution.
[[9.4.21.14 NMAC – Rp, 9.4.21.14 NMAC, XX/XX/XXXX]
9.4.21.15 [COMPLAINTS AGAINST THE NMDDPC OFFICE OF GUARDIANSHIP: Complaints against the NMDDPC office of
guardianship or a staff member of the NMDDPC office of guardianship shall be
filed with and investigated by the human services department, by sending a
complaint in writing directly to the secretary of human services department
with a copy sent to the director of the NMDDPC office of guardianship. (NMSA
2003 28-16B-6E )] [RESERVED]
[[9.4.21.15 NMAC – Repealed, XX/XX/XXXX]
9.4.21.16 [TRANSFER OF PROTECTED PERSON FROM A
PRIVATE PAY GUARDIANSHIP TO A PROGRAM FUNDED THROUGH THE NMDDPC OFFICE OF
GUARDIANSHIP:
A. Purpose: It is not the intention of the NMDDPC office
of guardianship to create a hardship on any private pay provider of
guardianship services in cases where resources are being exhausted, but in order to work in a more collaborative fashion these
procedures are being developed to move the private pay protected persons into
the state funded program under the NMDDPC office of guardianship in a timely
and reasonable manner to minimize the impact on the protected person.
B. Requirements: In
order to affect a protected person’s transfer to a program funded
through the NMDDPC office of guardianship, the private pay guardianship must do
the following:
(1) obtain an application for services
from the NMDDPC office of guardianship and fill it out completely (failure to
do so will result in delay of transfer);
(2) the filing of the request for
services with the NMDDPC office of guardianship does not guarantee the request
will be granted;
(3) to be eligible for transfer into this
program, a protected person must be financially eligible for institutional medicaid and medicaid in New
Mexico;
(4) appropriate placement must be secured
by the private pay guardians for the protected person prior to transfer to a publically funded guardian;
(5) all necessary medical and other
information regarding the protected person must be provided to the new guardian
in a timely manner;
(6) any original legal documents such as
birth certificates, social security cards, medicaid
cards, etc. shall be turned over to the new guardian upon appointment;
(7) legal fees for the transferring of
the case must be paid by the private provider (this would include the closing
of the conservatorship);
(8) if the protected person has a
conservatorship and no assets, then the conservatorship must be closed prior to
transfer; if the conservatorship cannot be closed for some appropriate reason,
then a complete accounting must be given to the NMDDPC office of guardianship
at the time of transfer;
(9) there must be a burial policy for the
ward; ownership is to be transferred by the private provider to the NMDDPC
office of guardianship’s appointed guardian;
(10) these transfers will not be given any
priority status;
(11) the private pay provider will agree to
cooperate with the new guardian on matters, including, but not limited to,
providing any information the new guardian might need, which may be in the
possession of the private guardian;
(12) these transfers will be effectuated
according to, Section 45-5-307 NMSA 1978.]
[RESERVED]
[9.4.21.16 NMAC – Repealed, XX/XX/XXXX]
9.4.21.17 [REQUESTS FOR INFORMATION:
A. Any requests for non-confidential
information will be treated as a request for inspection of public records under
the state inspection of public records act. (Section 14-2-1 through 14-2-12
NMSA 1978).
B. Any requests for confidential
information or client specific information will be handled according to state
and federal law. (Section 28-16B-4B (2003) NMSA 1978).] [RESERVED]
[9.4.21.18 NMAC - N, 04/30/2007; A, 9/15/2011]
9.4.21.18 [COMPREHENSIVE EVALUATIONS:
A. Depending upon the availability of
funding and resources, and unless otherwise provided for by another agency or
program, comprehensive evaluations for protected persons with contracted providers may be obtained through a referral
to the NMDDPC office of guardianship by the contract guardian if the protected
person appears to have made gains in her/his capacity or to be in need of
increased protection or other such that a request for review of the
guardianship by the court appears indicated.
B. Comprehensive
evaluations will occur in the following manner:
(1) The comprehensive evaluations will
be done by the entity designated by the
NMDDPC office
of guardianship.
(2) All contracted guardianship
providers will provide the names of their protected persons who meet the
criterion in Subsection A of this section at any time and upon request by the
NMDDPC office of guardianship. The
referral process will be established by the NMDDPC office of guardianship.
(3) The components of the comprehensive
evaluation will be determined by the designated entity after consultation with
the guardian.
(4) The
designated entity will set up the appointments.
(5) The
contracted guardianship provider will provide written authorization for the protected person selected for a comprehensive evaluation.
(6) The
contracted guardianship provider will provide the following documents at a time
and place determined by the designated entity:
(a) name
of the protected
person, living arrangements of the ward,
day placement and daily activity, and relevant contact information;
(b) medical
history and assessment history of the protected person that may come from other state and federal programs such as
the DD waiver program, medicaid, schools, division of
vocational rehabilitation, commission for the blind, etc.;
(c) the
current level of guardianship, and;
(d) any
additional information requested by the designated entity relevant to the
comprehensive evaluation.
(7) These provisions are in addition to
any terms and conditions regarding comprehensive evaluations as set forth in the
contract between the NMDDPC office of guardianship and the contracted
guardianship provider.
(8) If a
protected person has undergone some part of the
comprehensive evaluation within the last three years, the contracted
guardianship provider may request to substitute that part of the evaluation for
the report of the evaluation undergone within the last three years. The designated entity may deny the request,
based on professional judgment, it should not be substituted. If a substitution
is allowed, the contracted guardianship provider will provide the report of
that evaluation to the designated entity.
(9) If
the contracted guardianship provider has clear and convincing evidence that a protected person does not need an evaluation, the contracted guardianship
provider will provide to the NMDDPC office of guardianship a short description
explaining why the protected
person should not be evaluated.
(10) The
NMDDPC office of guardianship or its agent has the right to review the files
and records of any protected
person under contract between the NMDDPC
office of guardianship and a contracted guardianship provider for the purpose
of determining whether the protected person
should have a comprehensive evaluation.
(11) If
the NMDDPC office of guardianship determines that a protected person should undergo an evaluation, despite the justification
provided in Paragraph (9) of Subsection B of 9.4.21.18 NMAC, the NMDDPC office
of guardianship will send a letter to the contracted guardianship provider so
stating (“Notice Letter”). If, after
receipt of the notice letter, the contracted guardianship provider does not agree with the NMDDPC
office of guardianship that a protected person should
undergo an evaluation, the following procedure will commence.
(a) Within 10 working days after
receiving the notice letter, the contracted guardianship provider will contact
the NMDDPC office of guardianship in writing with the basis for its
disagreement with the notice letter and during that same time
period set up a meeting at the office of the NMDDPC office of
guardianship for the purpose of attempting to resolve this issue. The contracted guardianship provider
attending the meeting must have full authority to resolve this issue. The proposed location of the meeting will be
at the office of the NMDDPC office of guardianship at a day and time proposed
by the NMDDPC office of guardianship.
The contracted guardianship provider may propose a different time and
location. The meeting must be held no more than 30 days from the date
of receipt of the notice letter. If the
parties cannot agreed on a location and time, the
NMDDPC office of guardianship may petition
the court pursuant to Subparagraph (d) of Paragraph (11) of Subsection B of
9.4.21.18 NMAC.
(b) If
the parties come to an agreement, the protected person may or may not undergo an evaluation depending on the
agreement reached by the parties.
(c) The
NMDDPC office of guardianship will confirm the outcome of the meeting by letter
(outcome letter) within two working days of the meeting between the parties.
(d) If
there is no agreement, the NMDDPC office of guardianship may, within fourteen (14)
working days from the date of the outcome letter, petition the court in which
the guardian was appointed to have the protected person evaluated.]
[RESERVED]
[9.4.21.18 NMAC – Repealed, XX/XX/XXXX]
9.4.21.19 COMPREHENSIVE
SERVICE REVIEWS:
A. The NMDDC office of guardianship shall designate an attorney
licensed in New Mexico and a certified professional guardian to conduct annual
comprehensive service reviews.
B. Comprehensive service reviews will
include:
(1) Interviews with service provider
staff and contractors;
(2) Interviews with protected persons
and, if necessary, third parties;
(3) Reviews of the service provider’s
policies and procedures;
(4) Reviews of individual case files of
protected persons; and
(5) Reviews of other documentation
related to the service provider’s provision of services.
C. The designated attorney and
certified professional guardian shall provide a written report to the NMDDC
office of guardianship.
D. The NMDDC office of guardianship
shall notify the service provider in writing of the results of the
comprehensive service review.
[9.4.21.19 NMAC – N, XX/XX/XXXX]
9.4.21.20 CORRECTIVE
ACTION PLANS: The NMDDC office of guardianship may require a service
provider to develop, implement, and complete a written corrective action plan
when it determines that the service provider failed to provide services in
accordance with the service agreement or within the scope of the order granted
by the court.
A. The service provider shall obtain
the NMDDC office of guardianship’s approval of a corrective action plan that:
(1) Identifies the deficiencies;
(2) Establishes steps to resolve the
deficiencies;
(3) Identifies the documentation the
service provider must submit to confirm the deficiencies are resolved;
(4) Establishes a deadline by which
the corrective action plan must be completed; and
(5) Includes any other requirements
identified by the NMDDC office of guardianship.
B. The NMDDC office of guardianship
shall monitor the service provider’s progress until the corrective action plan
is complete.
C. When the NMDDC office of
guardianship determines that the service provider has completed the corrective
action plan, it shall notify the service provider in writing.
[9.4.21.20 NMAC – N, XX/XX/XXXX]
HISTORY OF
9.4.21 NMAC:
9.4.21 NMAC – Guardianship Services, filed 4/14/2006, was repealed
and replaced by 9.4.21 NMAC – Guardianship Services, effective XX/XX/XXXX.