TITLE 8 SOCIAL SERVICES
CHAPTER 370 OVERSIGHT OF LICENSED HEALTHCARE FACILITIES
AND COMMUNITY BASED WAIVER PROGRAMS
PART 9
INCIDENT REPORTING,
INTAKE, PROCESSING AND TRAINING REQUIREMENTS
8.370.9.1 ISSUING AGENCY: New Mexico Health Care Authority.
[8.370.9.1 NMAC - N, 07/01/2024]
8.370.9.2 SCOPE: This rule is applicable to persons,
organizations or legal entities to include each: adult day care center, adult
day care home, adult assisted living facility, ambulatory surgical center,
diagnostic and treatment center, end stage renal disease facility, general,
acute, special and limited service hospitals, home health agency, hospice
facility, hospital infirmary, intermediate care facility for the mentally
retarded or the intellectually and developmentally disabled, limited diagnostic
and treatment center, nursing facility,
skilled nursing facility, and rural
health clinic.
[8.370.9.2 NMAC - N, 07/01/2024]
8.370.9.3 STATUTORY AUTHORITY: Section 24-1-3, and 24-1-5 NMSA 1978, of the
Public Health Act as amended. Section
9-8-1 et seq. NMSA 1978 establishes the
health care authority (authority) (as a single, unified department to
administer laws and exercise functions relating to health care purchasing and
regulation.
[8.370.9.3 NMAC - N, 07/01/2024]
8.370.9.4 DURATION: Permanent.
[8.370.9.4 NMAC - N, 07/01/2024]
8.370.9.5 EFFECTIVE DATE:
July 1, 2024, unless a later date is cited at the end of a section.
[8.370.9.5 NMAC - N, 07/01/2024]
8.370.9.6 OBJECTIVE: This rule establishes standards for licensed
health care facilities to institute and maintain an incident management system
and employee training program for the reporting of abuse, neglect, exploitation
injuries of unknown origin and other reportable incidents.
[8.370.9.6 NMAC - N, 07/01/2024]
8.370.9.7 DEFINITIONS:
A. “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;
(3)
sexual abuse, including criminal sexual contact, incest, and criminal sexual
penetration; or
(4)
verbal abuse, including profane, threatening, derogatory, or demeaning
language, spoken or conveyed with the intent to cause mental anguish.
B. “Bureau” means
the health care authority, division of health improvement, health facility
licensing and certification bureau.
C. “Case manager” means the staff person
designated to coordinate and monitor the individual service plan for persons
receiving services.
D. “Complaint” means any report,
assertion, or allegation of abuse, neglect, or exploitation of, or injuries of
unknown origin to, a consumer made by a reporter to the incident management system, and includes any reportable incident that a licensed
health care facility is required to report under applicable law.
E. “CMS”
means the centers for medicare and medicaid services.
F. “Consumer”
means any person who engages the professional services of a medical or other
health professional on an inpatient or outpatient basis, or person requesting
services from a hospital.
G. “Division”
means the health care authority, division of health improvement.
H. “Employee”
means:
(1) any
person whose employment or contractual service with a licensed health care
facility which includes direct care or routine and unsupervised physical or
financial access to any care recipient serviced by that licensed health care
facility; or
(2) any
compensated persons such as employees, contractors and employees of
contractors; or guardianship service providers or case management entities that
provide services to people with developmental disabilities; or administrators
or operators of facilities who are routinely on site.
I. “Exploitation” means an unjust or improper use
of a person's money or property for another person's profit or advantage,
financial or otherwise.
J. “Immediate access”
means physical or in person direct and unobstructed access, to electronic or
other access needed by employees, consumers, family members or legal guardian
to the licensed health care facility’s incident management reporting procedures
or access to the division’s incident report form.
K. “Immediate reporting”
means reporting that is done as soon as practicable and no later than 24 hours
from knowledge of the incident.
L. “Immediate jeopardy”
means a provider's noncompliance with one or more requirements of medicaid or medicare
participation, which causes or is likely to cause, serious injury, harm,
impairment, or death to a consumer.
M. “Incident”
means any known, alleged or suspected event of abuse, neglect, exploitation,
injuries of unknown origin or other reportable incidents.
N. “Incident management system”
means the written policies and procedures adopted or developed by the licensed
health facility for reporting abuse, neglect, exploitation, injuries of unknown
origin or other reportable incidents.
O. “Incident report form”
means the reporting format issued by the division for the reporting of
incidents or complaints.
P. “ISP” means a consumer’s individual service plan.
Q. “Licensed health care facilities”
means any organization licensed by the authority for the following services:
adult day care center, assisted living facility, ambulatory surgical center,
diagnostic and treatment center, end stage renal disease facility, general,
acute, special and limited service hospitals, home health agency, hospice
facility, hospital infirmary, intermediate care facility for the mentally
retarded or intellectually and developmentally disabled, limited diagnostic and
treatment center, nursing facility, skilled nursing facility, rural health
clinic.
R. “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.
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. “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
licensed health care facility’s mission, values and goals.
U. “Quality improvement system”
means the adopted or developed licensed health care facility’s policies and
procedures for reviewing and documenting all alleged incidents of abuse,
neglect, exploitation, injuries of unknown origin, or other reportable
incidents for the continuous study and improvement of the efficiency and
efficacy of organizational, administrative and preventative practices in
employee training and reporting.
V. “Reportable incident” means possible abuse,
neglect, exploitation, injuries of unknown origin and other events including
but not limited to falls which cause injury, unexpected death, elopement,
medication error which causes or is likely to cause harm, failure to follow a
doctor’s order or an ISP, or any other incident which may evidence abuse,
neglect, or exploitation.
W. “Reporter”
means any person who or any entity that reports possible abuse, neglect or
exploitation to the division.
X. “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.
Y. “Revocation”
means a type of sanction making a license null and void through its
cancellation.
Z. “Sanction”
means a measure imposed by the authority on a licensed program, pursuant to
these requirements, in response to a finding of deficiency, with the intent of
obtaining increased compliance with these requirements.
AA. “Substantiated” means
the verification of a complaint based upon a preponderance of reliable evidence
obtained from an appropriate investigation of a complaint of abuse, neglect, or
exploitation.
BB. “Suspension”
means a temporary cancellation of a license pending an appeal, hearing or
correction of the deficiency. During a
suspension the provider's medicare or medicaid agreement is not in effect.
CC. “Training curriculum”
means the instruction manual or pamphlet adopted or developed by the licensed
health facility containing policies and procedures for reporting abuse,
neglect, misappropriation of consumers' property or other reportable incidents.
DD. “Unsubstantiated” means that the
complaint or incident could not be verified based upon a preponderance of
reliable evidence obtained from an appropriate investigation of a complaint of
abuse, neglect, or exploitation.
EE. “Volunteer”
means any person
who works without compensation for a licensed health care facility whose
services includes direct care or routine and unsupervised physical or financial
access to any care recipient serviced by that licensed health care facility.
[8.370.9.7 NMAC - N, 07/01/2024]
8.370.9.8 INCIDENT MANAGEMENT SYSTEM
REPORTING REQUIREMENTS FOR LICENSED HEALTH CARE FACILITIES:
A. Duty to report:
(1) All licensed health care facilities
shall immediately report abuse, neglect or exploitation to the adult protective
services division.
(2) All licensed health care facilities
shall report abuse, neglect, exploitation, and injuries of unknown origin or
other reportable incidents to the bureau within a 24 hour period, or the next
business day when the incident occurs on a weekend or holiday.
(3) All licensed health care facilities
shall ensure that the reporter with direct knowledge of an incident has
immediate access to the bureau incident report form to allow the reporter to
respond to, report, and document incidents in a timely and accurate manner.
B. Notification:
(1) Incident
reporting: Any person may report an incident to the bureau by
utilizing the DHI toll free complaint hotline at 1-800-752-8649. Any consumer, employee, family member or
legal guardian may also report an incident to the bureau directly or through
the licensed health care facility by written correspondence or by utilizing the
bureau’s incident report form. The
incident report form and instructions for the completion and filing are
available at the division's website or may be obtained from the authority by
calling the toll free number at 1-800-752-8649.
(2) Division
incident report form and notification by licensed health care facilities:
The licensed health care facility shall report incidents utilizing the
division’s incident report form consistent with the requirements of the
division’s incident management system guide and CMS regulations as applicable. The licensed health care facility shall
ensure that all incident report forms alleging abuse, neglect, exploitation,
injuries of unknown origin or other reportable incidents are submitted by a
reporter with direct knowledge of an incident, are completed on the bureau’s
incident report form and received by the division within 24 hours of an
incident or allegation of an incident or the next business day if the incident
occurs on a weekend or a holiday. The
licensed health care facility shall ensure that the reporter with the most
direct knowledge of the incident assists with the preparation of the incident
report form.
C. Incident policies:
All licensed health care facilities shall maintain policies and procedures
which describe the licensed health care facility’s immediate response to all
reported allegations of abuse, neglect, exploitation, injuries of unknown
origin, and deaths, as applicable.
D. Retaliation:
Any individual who, without false intent, reports an incident or makes an
allegation of abuse, neglect or exploitation will be free of any form of
retaliation.
E. Quality improvement system for
licensed health care facilities: The licensed health care
facility shall establish and implement a quality improvement system for
reviewing alleged complaints and incidents.
The incident management system shall include written documentation of
corrective actions taken. The provider
shall maintain documented evidence that all alleged violations are thoroughly investigated, and shall take all reasonable steps to prevent
further incidents.
[8.370.9.8 NMAC - N, 07/01/2024]
8.370.9.9 INCIDENT MANAGEMENT SYSTEM
REQUIREMENTS:
A. General: All licensed health care facilities shall
establish and maintain an incident management system, which emphasizes the
principles of prevention and staff involvement.
The licensed health care facility shall ensure that the incident
management system policies and procedures require all employees to be
competently trained to respond to, report, and document reportable incidents in
a timely and accurate manner.
B. Training curriculum:
Prior to working unsupervised with
consumers, the licensed health care facility shall provide all employees and
volunteers with a written training curriculum and shall train them on incident
policies and procedures for identification, and timely reporting of abuse,
neglect, exploitation, injuries of unknown origin or other reportable incidents. Refresher training shall be provided at
annual, not to exceed 12 month, intervals.
The training curriculum may include computer-based training. Reviews shall include, at a minimum, review
of the written training curriculum and site-specific issues pertaining to the
licensed health care facility. Training
shall be conducted in a language that is understood by the employee and
volunteer.
C. Incident management system training
curriculum requirements:
(1) The licensed health care facility
shall conduct training, or designate a knowledgeable representative to conduct
training, in accordance with the written training curriculum that includes but
is not limited to:
(a) an
overview of the potential risk of abuse, neglect, and exploitation;
(b) informational procedures for properly
filing the division's incident management report form;
(c) specific instructions of the
employees’ legal responsibility to report an incident of abuse, neglect or
exploitation;
(d) specific instructions on how to
respond to abuse, neglect, and exploitation; and
(e) emergency action procedures to be
followed in the event of an alleged incident or knowledge of abuse, neglect, or
exploitation.
(2) All current employees and volunteers
shall receive training within 90 days of the effective date of this rule.
D. Training documentation: All licensed health care facilities shall
prepare training documentation for each employee to include a signed statement
indicating the date, time, and place they received their incident management
reporting instruction. The licensed
health care facility shall maintain documentation of an employee's or
volunteer’s training for a period of at least 12 months. Training curricula shall be kept on the
premises and made available on request by the authority. Training documentation shall be made
available immediately upon a authority
representative's request. Failure to
provide employee or volunteer training documentation shall subject the licensed
health care facility 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
accessibility to the licensed health care facility incident reporting processes. The licensed health care facility 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 or
exploitation. The licensed health care
facility 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. Posting of incident
management information poster: All licensed health care facilities and shall
post two or more posters, to be furnished by the division, in a prominent
public location which states all incident management reporting procedures,
including contact numbers and internet addresses. All licensed health care facilities operating
60 or more beds shall post at least three or more posters, to be furnished by
the division, in a prominent public location which states all incident
management reporting procedures, including contact numbers and internet
addresses. The posters shall also be
posted where employees report each day and from which the employees operate to
carry out their activities. Each
licensed health care facility shall take steps to ensure that the notices are
not altered, defaced, removed, or covered by other material.
[8.370.9.9 NMAC - N, 07/01/2024]
8.370.9.10 ACCESS
AND COOPERATION TO FACILITATE AUTHORITY INCIDENT INVESTIGATIONS:
A. The
authority will conduct incident investigations and periodic surveys of licensed
health care facilities subject to these requirements. These reviews may be either announced or
unannounced.
B. All
licensed health care facilities shall facilitate immediate physical or
in-person access to authority personnel investigating incidents or conducting
surveys:
(1) all
records, regardless of media, including but not limited to, financial records,
all client records, individual service plans, personnel records, board and or
committee minutes, incident reports, quality assurance activities, client
satisfaction surveys and agency policy /procedures manuals;
(2) all
necessary employees with direct knowledge of the incident;
(3) all
necessary clients currently receiving services, guardians, representatives and
family members with direct knowledge of the incident; and
(4) all
administrative and service delivery sites.
C. All licensed
health care facilities shall conduct a complete investigation and report the
actions taken and conclusions reached by the facility within five days of
discovery of the incident.
[8.370.9.10 NMAC - N, 07/01/2024]
8.370.9.11 CONSEQUENCES
OF LICENSED HEALTH CARE FACILITY NONCOMPLIANCE:
A. The authority or other governmental
agency having regulatory enforcement authority over a licensed health care
facility may sanction a licensed health care facility or in accordance with applicable law if the
licensed health care facility fails to report incidents of abuse, neglect or
exploitation or fails to provide or fails to maintain evidence of an existing
incident management system and employee training documentation as set forth by
this rule, fails to take reasonable measures to protect consumers from abuse,
neglect or exploitation, or any other violation of this rule.
B. Such sanctions may include revocation or suspension of
license, directed plan of correction, intermediate sanctions or civil monetary
penalty up to $5,000 per instance.
C. All confirmed incident investigations conducted by the authority
hold the licensed health care facility responsible for the actions of the
employee in their employment with the following exception: any employee found
to have caused the abuse, neglect or exploitation shall be held accountable
independent of the licensed health care facility when the facility has complied
with all requirements of this rule and the employee acts outside of the
provider’s system. The employee shall be subject to the Employee
Abuse Registry Act or referred to the appropriate certification or licensing
authority and reported to law enforcement agencies when appropriate.
[8.370.9.11 NMAC - N, 07/01/2024]
8.370.9.12 CONFIDENTIALITY:
All consumer information reviewed or obtained in the
course of a survey or investigation of a licensed health care facility
is confidential in accordance with all applicable federal and state law and
regulation. If a complaint is unsubstantiated, no
information regarding the substance of the complaint or the alleged individual
or provider perpetrator may be released publicly. If a
complaint is substantiated, confidential information includes, but is not
limited to: identity of the incident report form reporter if confidentiality
has been requested, personnel records, dates of birth, drivers’ license
numbers, social security numbers, personal addresses and telephone numbers, the
licensed health care facility’s internal incident investigations, financial
documents and proprietary business information.
[8.370.9.12 NMAC - N, 07/01/2024]
8.370.9.13 SEVERABILITY: If any provision or
application of 8.370.9 NMAC is held invalid, the remainder, or its application
to other situations or persons, shall not be affected.
[8.370.9.13 NMAC – N, 07/01/2024]
History of 8.370.9 NMAC: [RESERVED]