TITLE 8 SOCIAL SERVICES
CHAPTER 370 OVERSIGHT OF LICENSED HEALTHCARE FACILITIES
AND COMMUNITY BASED WAIVER PROGRAMS
PART 10 ABUSE,
NEGLECT, EXPLOITATION, AND DEATH REPORTING, TRAINING AND RELATED REQUIREMENTS
FOR COMMUNITY PROVIDERS
8.370.10.1 ISSUING AGENCY: New Mexico Health Care Authority.
[8.370.10.1 NMAC - N, 07/01/2024]
8.370.10.2 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.
[8.370.10.2 NMAC - N, 07/01/2024]
8.370.10.3 STATUTORY AUTHORITY: Subsection E of Section 9-8-6, NMSA 1978, 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. 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.
[8.370.10.3 NMAC - N, 07/01/2024]
8.370.10.4 DURATION: Permanent.
[8.370.10.4 NMAC - N, 07/01/2024]
8.370.10.5 EFFECTIVE DATE:
July 1, 2024, unless a later date is cited at the end of a section.
[8.370.10.5 NMAC - N, 07/01/2024]
8.370.10.6 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.
[8.370.10.6 NMAC - N, 07/01/2024]
8.370.10.7 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 health care
authority:
(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. “Division”
means the health care authority, division of health improvement, incident
management bureau.
H. “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.
I. “Environmental hazard” means a
condition in the physical environment which creates an immediate threat to
health or safety of the individual.
J. “Exploitation” means an unjust or improper use
of a person's money or property for another person's profit or advantage,
financial, or otherwise.
K. “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.
L. “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.
M. “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.
N. “Incident”
means any known, alleged, or suspected event of abuse, neglect, exploitation,
suspicious injury, or any death.
O. “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 8.370.10.8 NMAC.
P. “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.
Q. “Natural support” means an
uncompensated person such as a family member, friend, or any person in a
supportive relationship with the consumer.
R. “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.
S. “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.
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
community-based service provider's mission, values and goals.
U. “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.
V. “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.
W. “Reporter”
means any person who, or any entity that, reports possible abuse, neglect,
exploitation, suspicious injury, or makes a report of death to the authority’s
incident management bureau.
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. “Sanction”
means a measure imposed by the authority on a provider, pursuant to these
requirements, in response to a finding of deficiency, with the intent of
obtaining increased compliance with these requirements.
Z. “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.
AA. “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.
BB. “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.
CC. “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.
DD. “Verbal abuse” means profane,
threatening, derogatory, or demeaning language, spoken or conveyed with the
intent to cause mental anguish.
EE. “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.
[8.370.10.7 NMAC - N, 07/01/2024]
8.370.10.8 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 division
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 or may be
obtained from the authority 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 8.370.10.8 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; 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; 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 8.370.10.8 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 authority'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.
[8.370.10.8 NMAC - N, 07/01/2024]
8.370.10.9 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 8.370.10.8 NMAC. The trainings shall be reviewed at annual, not to exceed
12-month intervals. The training
curriculum as set forth in Subsection C of 8.370.10.9 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 authority. 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.
[8.370.10.9 NMAC - N, 07/01/2024]
8.370.10.10 ACCESS
AND COOPERATION TO FACILITATE AUTHORITY INCIDENT INVESTIGATIONS:
A. The
authority 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 authority
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.
[8.370.10.10 NMAC - N, 07/01/2024]
8.370.10.11 CONSEQUENCES OF COMMUNITY-BASED SERVICE PROVIDER
NON-COMPLIANCE:
A. The authority 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 $5,000 per instance, or high level sanctions up to and including
termination or non-renewal of any provider agreement with the authority or
other governmental agency.
C. All substantiated incident investigations conducted by the authority
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.
[8.370.10.11 NMAC - N, 07/01/2024]
8.370.10.12 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.
[8.370.10.12 NMAC - N, 07/01/2024]
8.370.10.13 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.
[8.370.10.13 NMAC - N, 07/01/2024]
8.370.10.14 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 authority, financial documents, and proprietary business
information.
[8.370.10.14 NMAC - N, 07/01/2024]
8.370.10.15 SEVERABILITY: If any provision or
application of 8.370.10NMAC is held invalid, the remainder, or its application to
other situations or persons, shall not be affected.
[8.370.10.15 NMAC - N, 07/01/2024]
HISTORY OF 8.370.10 NMAC:
[RESERVED]