TITLE
8 SOCIAL SERVICES
CHAPTER
371 DEVELOPMENTAL DISABILITIES
PART
3 RIGHTS
OF INDIVIDUALS WITH DEVELOPMENTAL DISABILITIES LIVING IN THE COMMUNITY
8.371.3.1 ISSUING AGENCY: New Mexico Health Care Authority,
Developmental Disabilities Division.
[8.371.3.1
NMAC - N, 7/1/2024]
8.371.3.2 SCOPE:
A. This regulation applies only to clients and service
providers as defined below.
B. This regulation is not available to resolve disputes
concerning the content of or the substantial failure to implement a community
individual service plan. Any dispute
concerning the content of a plan or any claim alleging substantial failure to
implement a plan must be raised in the dispute resolution process, if
available. This regulation is not
available to review any action by a service provider or the authority to
suspend, terminate or reduce medicaid covered services if a fair hearing
procedure is available pursuant to federal law.
C. Nothing in this regulation alters or modifies the duty of
any person having reason to believe that a person is being abused, neglected,
or exploited to report that information as required by the Adult Protective
Services Act, Section 27-7-30 NMSA 1978 (1992 Repl.) and the Abuse and Neglect
Act, Section 32A-4-3 NMSA 1978 (1993 Repl.).
[8.371.3.2
NMAC - N, 7/1/2024]
8.371.3.3 STATUTORY AUTHORITY: Subsection E of Section 9-8-6 NMSA 1978. 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..
[8.371.3.3
NMAC - N, 7/1/2024]
8.371.3.4 DURATION: Permanent.
[8.371.3.4
NMAC - N, 7/1/2024]
8.371.3.5 EFFECTIVE DATE: July 1, 2024, unless a later date is cited at
the end of a section.
[8.371.3.5
NMAC - N, 7/1/2024]
8.371.3.6 OBJECTIVE:
A. These regulations set out rights that the authority
expects all providers of services to individuals with developmental
disabilities to respect. These
regulations are intended to complement the authority's client complaint procedures
8.371.4 NMAC.
B. These regulations are promulgated, in part, to satisfy
requirements arising from the implementation of the decision in the Jackson v.
Fort Stanton, N.M. Dist. Ct. No. Civ. 87-839, including agreements reached by
the parties. These regulations are
promulgated to further the goals of the Developmental Disabilities Act,
Sections 28-16A-1 through 28-16A-18 NMSA 1978.
C. The purpose of this regulation is to promote the health,
safety and welfare of individuals who are receiving supports and services for
persons with developmental disabilities from service providers certified by, or
funded in whole or in part with state funds administered by the authority
through contracts or agreements. This
regulation defines rights of persons with developmental disabilities so that
these rights can be readily identified, exercised and protected and provides
that the authority will enforce remedies for substantiated complaints of
violation of the client's right as provided in the client complaint procedure.
[8.371.3.6
NMAC - N, 7/1/2024]
8.371.3.7 DEFINITIONS:
A. “Aversive
procedures” means those prohibited procedures, including, but not limited
to, taste and odor aversives, excessive deprivation or stimulation of basic
sensory experiences, any device or intervention intended to cause pain or
unpleasant sensations, electric shock, isolation, mechanical restraint, forced
exercise, withholding of food, water or sleep, inappropriate clothing,
humiliation and water mist, as defined in the division’s behavioral support
policy.
B. “Client” means
a person with developmental disabilities who is receiving supports and services
for individuals with developmental disabilities by a service provider certified
by, or funded in whole or in part with state funds administered by the authority
through contracts or agreements.
C. “Complainant”
means a client or their legal guardian who files a complaint pursuant to this
regulation.
D. “Chemical
restraint” means the use of medication, including psychoactive medication,
as punishment, as a substitute for a habilitation or in quantities that
interfere with services or habilitation, for the convenience of staff, or for
unreasonable restricting a client's freedom of movement, other than in an
emergency where there is a substantial and imminent risk of serious physical
harm to the client or others.
E. “Days” means
calendar days.
F. “Developmental
disabilities” means a severe chronic disability of a person that:
(1) is attributable to a mental or
physical impairment, including the result from trauma to the brain, or a
combination of mental and physical impairments;
(2) is manifest before the person reaches
the age twenty-two years;
(3) is expected to continue indefinitely;
(4) results in substantial functional
limitations in three or more of the following areas of major life activity:
(a) self-care;
(b) receptive and expressive language;
(c) learning;
(d) mobility;
(e) self-direction;
(f) capacity for independent living; and
(g) economic self-sufficiency; and
(5) reflects the person's need for a
combination and sequence of special, interdisciplinary or generic care,
treatment or other services that are of life-long or extended duration and are
individually planned and coordinated.
G. “Director”
means the director, developmental disabilities division or the director’s
designate.
H. “Division”
means the developmental disabilities division of the authority.
I. “Emergency”
means a circumstance in which the health or safety of the client or another
person is in imminent risk of harm and immediate action is necessary to prevent
the harm.
J. “Emotional or
psychological abuse” means use of verbal or other communication to threaten
a client with physical harm or to ridicule, curse, humiliate, degrade or
antagonize a client, or any similar action
K. “Exploitation of a
client's personal property” means intentionally, knowingly or recklessly
using a client's person or property for another person's profit, advantage, or
benefit without legal right or authority.
Exploitation includes failure to compensate a client for services or
work for which he or she is entitled to compensation.
L. “Facilities”
means institutions operated by the authority.
M. “Guardian”
means the parent of an individual with developmental disabilities if the client
is a minor or a legal guardian appointed or recognized pursuant to the Uniform
Probate Code, Section 45-5-11, et seq. NMSA 1978 (1993 Repl.).
N. “Mechanical
restraint” means any apparatus that restricts a client's movement excluding
mechanical supports designed by a physical therapist and approved by a
physician or designed by an occupational therapist that is used to achieve
proper body position and excluding protective devices.
O. “Medical
restraint” means any apparatus prescribed by a physician, dentist or
medical practitioner acting within the scope of their license, as
health-related protection that restricts a client's movement during the conduct
of a specific medical or surgical procedure.
P. “Neglect”
means, subject to the client's right to refuse treatment and subject to medical
personnel's right to exercise sound medical discretion:
(1) the failure to provide any treatment,
services, care, medication or item that is necessary to maintain the health and
safety of a client;
(2) the failure to take reasonable
precaution that is necessary to prevent damage to the health and safety of a
client; or
(3) the failure to carry out a duty to
supervise properly or control the provision of any treatment, care, goods,
services, or medication necessary to maintain the health or safety of a client.
Q. “Office” means
the office of quality assurance or a regional office within the developmental
disabilities division.
R. “Plan” means
the individual service plan for services, treatment or habilitation developed
by the interdisciplinary team.
S. “Physical abuse”
means any act, or failure to act, performed knowingly, intentionally or
recklessly that causes or is likely to cause harm. Physical abuse includes, but is not limited
to, physically striking or assaulting a client, hitting, slapping, pinching,
kicking, pushing, dragging, shaking, squeezing, choking and shoving. Physical contact which endangers the safety
of a client as well as handling the client with more force than is necessary
also constitute physical abuse.
T. “Physical
restraint” means the use of manual methods to restrict the movement or
normal functioning of a portion of an individual's body other than physical
guidance and prompting techniques of brief duration.
U. “Protective
devices” means helmets, safety goggles or glasses, guards, mitts, gloves,
pads and other common safety devices that are normally used or recommended for
use by persons without disabilities while engaged in a sport, occupation, or
during transportation.
V. “Service provider”
means a private entity that has entered into a contract or provider agreement
with the authority or that is certified by the authority for the purpose of
providing supports and services to individuals with developmental
disabilities. When the context requires,
the service provider means the executive director or administrator having
authority to bind the service provider.
Service provider does not include facilities operated by the authority.
W. “Sexual abuse”
means sexual activity between a client and staff, nonconsensual sexual activity
or contact with others without regard to injury, and sexual exploitation. Sexual activity includes, but is not limited
to kissing, hugging, stroking or fondling with sexual intent; oral sex or
sexual intercourse; and request or suggestion or encouragement by staff for
performance of sex with the employee or another. Sexual intent is to be determined by an
examination of all the circumstances related to the incident. Sexual exploitation includes sexual
exploitation as defined in the Abuse and Neglect Act, Subsection F of Section
32A-4-2 NMSA 1978 and allowing, permitting or encouraging obscene or
pornographic filming or photographing of an adult client without their consent
for commercial or noncommercial purposes.
[8.371.3.7
NMAC - N, 7/1/2024]
8.371.3.8 REGULATION DOES NOT CREATE AN
ENTITLEMENT TO SERVICES:
Nothing in this regulation shall provide an entitlement to programs,
supports, services or benefits that does not otherwise exist pursuant to other
law or regulation.
[8.371.3.8
NMAC - N, 7/1/2024]
8.371.3.9 REGULATION DOES NOT CREATE A
CAUSE OF ACTION: Any rights or
remedies provided pursuant to this regulation that do not otherwise exist
pursuant to other law or regulation are enforceable only through the client
complaint procedure and are not enforceable in court. Nothing in this regulation shall create a
right of judicial review of the administrative decision of the director or the
secretary or the secretary’s designee made pursuant to the client complaint
procedure.
[8.371.3.9
NMAC - N, 7/1/2024]
8.371.3.10 CLIENT RIGHTS: Unless expressly modified by court order or
specifically granted to a guardian or conservator, all clients have:
A. the same legal rights guaranteed to all other individuals
under the United States Constitution, New Mexico State Constitution, and
federal and state laws;
B. the right to be free from unlawful discrimination on the
basis of race, age, religion, color, national origin, ancestry, sex, sexual
preference, physical or mental handicap or medical condition;
C. the right to be free from emotional or psychological
abuse, physical abuse, sexual abuse, neglect and exploitation of their personal
property;
D. the right to practice the religion of their choice or to
abstain from the practice of religion;
E. the right to safe working conditions, hours of labor and
wages for labor consistent with the Fair Labor Standards Act and other
applicable federal and state laws, and worker's compensation, except that
clients receiving residential services may be required to do normal
housekeeping and home maintenance chores; clients shall not be required to
perform labor involving the essential operation of the service provider,
including the care and treatment of other clients; clients may volunteer to do
labor, consistent with federal and state labor laws; if a client volunteers to
do work for which the program would otherwise be required to pay non-clients,
the client shall be paid a commensurate wage;
F. the right to consent to or refuse medical treatment,
medical services, and other forms of habilitation services or supports,
consistent with the ISP regulations and the duties of a parent, guardian or
treatment guardian pursuant to the requirements of the Children's Mental Health
and Developmental Disabilities Act, Section 32A-6-14 NMSA 1978 (1993 Repl.) or
the Mental Health and Developmental Disabilities Act, Section 43-1-15 NMSA 1978
(1993 Repl.);
G. the right to have privacy, including both periods of
privacy and places of privacy;
H. the right to communicate freely with persons of their choice
in any reasonable manner and at any reasonable time they choose;
I. the right to own, use and control real property and
personal possessions;
J. the right to engage in social interaction with members
of either sex;
K. the right to enter into contract, including the contract
to marry;
L. the right to engage in consensual sexual activity, except
sexual activity defined as sexual abuse;
M. the right to procreate and to parent or not to procreate;
N. the right to manage their financial affairs, unless the
client has a court appointed guardian or conservator or access to their funds
is restricted by the individual service plan; a service provider who manages
the funds of a client pursuant to the client's individual service plan shall
comply with applicable federal standards or regulations and the following
requirements:
(1) the service provider shall have
obtained informed consent and written authorization from the client or the
guardian or conservator, which shall state the service provider's
responsibilities;
(2) the service provider shall maintain a
written record of all financial transactions involving the funds of the client
and shall make the record available to the client and the guardian or
conservator upon request;
(3) the service provider shall provide
for the safekeeping of the funds, shall keep the funds separate from all other
funds and shall be held strictly accountable for the funds and any interest;;
(4) the service provider shall return the
funds to the client or guardian or conservator, including interest, upon
request. Upon the death of a client, the
service provider shall provide the executor or personal representative a
complete accounting of all funds and property;
O. the right to participate in the political process,
including the right to vote;
P. the right to have access to their records, except as
expressly limited by statute, and to have confidential treatment of all
information in their records, including personal and medical records;
confidentiality does not preclude access to an individual's records by an
individual or organization otherwise entitled under federal or state law to
review records;
Q. the right to voice grievances and complaints and to
recommend changes in service provider policies and services without restraint,
interference, coercion, discrimination or reprisal;
R. the right to have access to available advocacy services,
including consultation and assistance on the individual's concerns and training
on legal rights;
S. the right to refuse to participate in medical or
psychological research experimentation;
T. the right to be free from excessive use of medical
restraint;
U. the right to be free from the use of chemical restraint;
V. the right to be free from the use of physical restraint
except in an emergency;
W. the right to be free from limitations on freedom of
movement except in an emergency;
X. the right to be free from the use of mechanical
restraint; and
Y. the right to be free from the use of aversive procedures.
[8.371.3.10
NMAC - N, 7/1/2024]
8.371.3.11 RESTRICTIONS OR LIMITATION OF
CLIENT'S RIGHTS:
A. A service provider shall not restrict or limit a client's
rights except:
(1) where the restriction or limitation
is allowed in an emergency and is necessary to prevent imminent risk of
physical harm to the client or another person; or
(2) where the interdisciplinary team has
determined that the client's limited capacity to exercise the right threatens their
physical safety; or
(3) as provided for in Subsection N of 8.371.3.10
NMAC.
B. Any emergency intervention to prevent physical harm shall
be reasonable to prevent harm, shall be the least restrictive intervention
necessary to meet the emergency, shall be allowed no longer than necessary and
shall be subject to interdisciplinary team (IDT) review. The IDT upon completion of its review may
refer its findings to the office of quality assurance. The emergency intervention may be subject to
review by the service provider’s behavioral support committee or human rights
committee in accordance with the behavioral support policies or other authority
regulation or policy.
C. The service provider may adopt reasonable program
policies of general applicability to clients served by that service provider
that do not violate client rights.
[8.371.3.11
NMAC - N, 7/1/2024]
8.371.3.12 RETALIATION FOR INITIATION OF
COMPLAINT PROCEDURE PROHIBITED: A client has the right to present or make
known a complaint without restraint, interference or coercion. A service provider shall not retaliate or
discriminate against a client, staff person or other person who complains to
the service provider or initiates a complaint procedure.
[8.371.3.12
NMAC - N, 7/1/2024]
8.371.3.13 CLIENT COMPLAINT PROCEDURE
AVAILABLE: A complainant may
initiate a complaint as provided in the client complaint procedure to resolve
complaints alleging that a service provider has violated a client's rights as
described in Section 10. The authority
will enforce remedies for substantiated complaints of violation of a client's
rights as provided in client complaint procedure.
[8.371.3.13
NMAC - N, 7/1/2024]
HISTORY
OF 8.371.3 NMAC: [RESERVED]