TITLE
8 SOCIAL SERVICES
CHAPTER
371 DEVELOPMENTAL DISABILITIES
PART
4 CLIENT
COMPLAINT PROCEDURES
8.371.4.1 ISSUING AGENCY: New Mexico Health Care Authority, Developmental
Disabilities Division.
[8.371.4.1
NMAC - N, 7/1/2024]
8.371.4.2 SCOPE:
A. This regulation applies only to clients and service
providers as defined below.
B. Except as described in Section VII (A), 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.)
[8.371.4.2
NMAC - N, 7/1/2024]
8.371.4.3 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.
[8.371.4.3
NMAC - N, 7/1/2024]
8.371.4.4 DURATION: Permanent.
[8.371.4.4
NMAC - N, 7/1/2024]
8.371.4.5 EFFECTIVE DATE: July 1, 2024, unless a later date is cited at
the end of a section.
[8.371.4.5
NMAC - N, 7/1/2024]
8.371.4.6 OBJECTIVE: 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 provides a procedure to address client complaints and
provides that the authority will enforce remedies for substantiated complaints
through the service providers funding contract or provider agreements.
[8.371.4.6
NMAC - N, 7/1/2024]
8.371.4.7 DEFINITIONS:
A. “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.
B. “Complainant”
means a client or their legal guardian who files a complaint pursuant to this
regulation.
C. “Days” means
calendar days.
D. “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 22 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 of independent living; and
(g) economic self-sufficiency.
E. “Director”
means the director, developmental disabilities division or the director’s designee.
F. “Division”
means the developmental disabilities division of the authority.
G. “Emergency” means a circumstance in which the health or
safety of the client or another person is in immediate and serious jeopardy and
must be protected immediately to stop or prevent harm.
H. “Facilities” means
institutions operated by the authority.
I. “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 45-5-101. et. Seq. NMSA 1978 (1993 Repl.).
J. “Office”
means the office of quality assurance or a regional office within the
developmental disabilities division.
K. “Plan” means
the individual service plan for services, treatment or habilitation developed
by the interdisciplinary team.
L. “Service provider”
means a private entity that has entered into a contact 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.
[8.371.4.7
NMAC - N, 7/1/2024]
8.371.4.8 REASONS FOR ADOPTION:
A. These regulations provide a procedure to address client
complaints and provides that the authority will enforce remedies for
substantiated complaints through the service providers funding contracts or
provider agreements.
B. These regulations are promulgated, in part, to satisfy
requirements arising form 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.
[8.371.4.8
NMAC - N, 7/1/2024]
8.371.4.9 REGULATION DOES NOT CREATE AN
ENTITLEMENT TO SERVICES:
Nothing in this regulation shall provide and entitlement to programs,
supports, services or benefits that does not otherwise exist pursuant to other
law or regulation.
[8.371.4.9
NMAC - N, 7/1/2024]
8.371.4.10 REGULATION DOES NOT CREATE A CAUSE
OF ACTION: Any remedies provided
pursuant to this regulation that do not otherwise exist pursuant to other law
or regulation are enforceable only through the complaint and appeal process
provided herein 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 their designee made pursuant to this regulation unless such review
is available pursuant to other law or regulation.
[8.371.4.10
NMAC - N, 7/1/2024]
8.371.4.11 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 who complains to the service provider or
initiates a complaint procedure.
[8.371.4.11
NMAC - N, 7/1/2024]
8.371.4.12 COMPLAINT PROCEDURE AVAILABLE:
A. The complaint process (Section 13 of this regulation) is
available to resolve complaints alleging that a service provider, its employee,
or a person acting under contract with the service provider has violated rights
of the client set forth in the federal or state constitutions, statutes or
applicable authority regulations or policies and such violation adversely
affects the client. The administrative
appeal process (Section 14 of this regulation) is available, however, only as
to alleged violations of rights set forth in the federal and state
constitutions, statutes and authority regulations and policies designated
“client's rights.”
B. The complaint procedure shall be available to clients or
their legal guardians. The client or the
legal guardian has the right to a legal representative or advocate of their choice
at no expense to the authority.
C. If a complaint alleges a violation of statute, regulation
or ordinance that another state agency or public entity has authority to
investigate and enforce, the division may refer the complaint to that entity
unless the client objects to the referral , except that the division shall
report the violation when there is a statutory requirement to report. The division may decline to investigate the
complaint.
D. The complaint procedure is not available to the service
provider to review the final decision of the authority. The service provider may seek redress for any
adverse action if provided by the terms of the service provider's contract or
provider agreement.
E. The client may withdraw their complaint at any time. If the complainant is not the client, the
division shall not continue the complaint procedure under this regulation if
the client objects. The division may
pursue its own investigation and take corrective action as appropriate.
F. The complainant and the service provider may settle a
complaint by mutual agreement unless the client objects. However, the complainant and the service
provider may not modify a finding substantiating the complaint.
[8.371.4.12
NMAC - N, 7/1/2024]
8.371.4.13 COMPLAINT PROCESS:
A. Step one: Service
provider review:
(1) Each service provider shall have a
complaint or grievance procedure that is reviewed and approved by the
division. Except as provided in
Paragraph (7) below, a client or a legal guardian must initiate a complaint with
the service provider within 180 days of the event or occurrence that is the
subject of the complaint and in the manner set forth in the service provider's
complaint or grievance procedure.
(2) The service provider's complaint or
grievance procedure shall provide, at a minimum, that:
(a) the client is notified of the service
provider's complaint or grievance procedure;
(b) a complaint may be made orally or in
writing;
(c) the service provider shall meet with
the complainant if a complaint is made; if the complainant is not the client,
the client shall be notified of the meeting and allowed to attend;
(d) the complainant and the client may
have a representative(s) of their choice present at the meeting;
(e) the complaint will be decided by an
impartial person who is not involved in the incident complained of but who may
be an employee of the service provider;
(f) the complainant and their
representative, if any, will receive a written response within 15 days of the
complaint;
(g) the complainant has a right to file a
complaint with the authority if the complainant is not satisfied with the
service provider's response; and
(h) the service provider will assist the
client in filing a complaint with the division upon request.
(3) The employees or staff of the service
provider shall have the responsibility to initiate a complaint on behalf of the
client whenever they have reason to believe that a violation of the client's
rights may have occurred.
(4) The service provider shall issue a
brief written response to the client and the guardian stating the nature of the
complaint and the result(s) requested by the complainant, the disputed facts,
if any, the undisputed facts, if any, the resolution of the complaint of the
attempts made to resolve the complaint.
(5) The service provider shall respond to
the complaint in writing within 15 days of the initial complaint. The time line may be extended by mutual
agreement of the complainant and the service provider. The service provider shall maintain a copy of
each written response in the client's record and in a central file that is
available to the authority. If the
complaint alleges abuse or neglect, the service provider shall, in addition to
any other requirements, provide a copy of the response to child protective services
or adult protective services. If the
complainant alleges abuse or neglect or if the complaint involves a dangerous
condition or a risk to the client's health or safety, the service provider
shall provide a copy of the written response to the office.
(6) The failure of the service provider
to issue a response to a client's complaint in writing shall be a separate and
independent ground for filing a complaint with the division.
(7) If a complainant alleges abuse or
neglect, or if the complaint involves a dangerous condition, or a risk to the
client's health or safety, the complaint may be make with the division’s office
pursuant to step two without initiating a complaint with the service provider.
B. Step two. Quality
assurance review: Expedited investigation:
In addition to the investigation and review procedures and described herein, if
the office has reason to believe that the health or safety of the client is in
jeopardy, the division shall, in cooperation with other agencies as necessary,
take steps to ensure that the client is safe while the complaint is under
investigation and shall expedite the investigation and issue preliminary
findings within 10 days of receipt of the complaint. If the complainant alleges abuse or neglect
or the office has reason to believe that abuse or neglect has occurred or is
occurring, the office shall make an immediate referral to child protective
services of adult protective services for investigation.
(1) If the complaint is not resolved, a
complaint may be filed with the division’s designated office. The complaint must be made orally or in
writing within 20 days from the date of the written response of the service provider,
unless the service provider has failed to respond in writing or the complainant
is filing the initial complaint with the office as provided in Paragraph (7) of
Subsection A of 8.371.4.13 NMAC.
(2) The complaint shall be a brief
statement of the act(s) that is the basis of the alleged violation. The complaint may be made orally or in
writing. The complainant may provide the
office a copy of the service provider's written response.
(3) If the office has reason to believe
that abuse or neglect has occurred or is occurring, the Office shall make an
immediate referral to child protective services (CPS) or adult protective
services (APS) so that they may investigate the complaint immediately. The division shall coordinate with and assist
CPS and APS as necessary.
(4) The office shall examine each
complaint and determine whether the complainant alleges that a service
provider, its employee, or a person under contract with the provider has
violated rights of the client set forth in federal or state constitutions,
statutes, or applicable authority regulations or policies. If the complainant does not allege such
violation of the rights of the client, or if the allegation is not against a
service provider or its employee or contractor, the office shall refer the
complaint to any federal, state or local governmental body or private entity
with authority over the issue or subject matter unless the client objects the
referral.
(5) The office shall notify the service
provider of the complaint within five days of receipt of the complaint. If the complainant initiated the complaint
with the service provider, the service provider shall provide the office a copy
of its written response to the unresolved complaint upon request.
(6) The office shall review the complaint
and determine whether an expedited investigation is necessary. If an expedited investigation is not
necessary, the office will determine whether a full investigation is necessary
to resolve the complaint. If the office
determines that a full investigation is not necessary because the facts are not
in dispute or the facts can be determined without a full investigation, the
office shall issue a report within 15 days of receipt of the complaint.
(7) If the office initiates a full
investigation of the complaint, the office shall contact and interview the
client and their representative, if any.
The office shall interview the client in person unless:
(a) the client has the capacity to be
interviewed by telephone and
(b) the complaint does not involve a
dangerous condition, a risk to the client's health or safety, a significant
rights violation, or other serious circumstance. The complainant, the service provider, and
any other persons having relevant information shall be given the opportunity to
present facts and documents relevant to the complaint.
(8) The office shall prepare a written
report of the results of the investigation within 45 days of receipt of the
complaint. The written report shall
include a statement of the complaint, a summary of the findings of fact, a
determination whether the allegation(s) is substantiated, and the reasons for
the determination. If the alleged
violation is substantiated, the written report shall include a recommendation
of proposed action.
(9) The director shall review the
office's written report. The director
shall issue a written decision within 10 days of receipt of the written report,
unless the director extends the time as provided below.
(a) The director shall either adopt the
findings of fact or return the matter to the office with specific instructions
for additional investigation and findings if he or she determines that there is
insufficient information on which to base a decision. If the director returns the complaint to the
office for additional investigation and findings, the director shall state the
deadline for completion of the investigation and additional findings, which
shall be no more that 14 days unless the director determines that circumstances
require additional time. (b) Director shall determine whether
there is reason to support the complainant's allegations and determine what
action, if any, should be taken. If the
director reflects the findings of fact or modifies the recommendation of
proposed action, the director shall state the reasons for their decision.
(10) The written decision of the division
director is final unless the complainant requests an administrative hearing as
provided in section of this regulation.
[8.371.4.13
NMAC - N, 7/1/2024]
8.371.4.14 ADMINISTRATIVE APPEAL PROCESS: The administrative appeal process is
available only to review the decision of the division director as to alleged
violations by the service provider, its employees, or persons under contract
with the service provider of rights set forth in the federal or state
constitutions, statutes, or authority regulations or policies designated
“client's rights.” The administrative hearing is intended to be accomplished
without the involvement of legal counsel, but the complainant and the service
provider may be represented by legal counsel of their choosing at their own
expense.
A. Step one:
Administrative hearing:
(1) Request for hearing:
(a) If the complainant is not satisfied
with the decision of the director, the complainant may request an evidentiary
hearing before and impartial hearing officer.
The request must be in writing, must be filed with the director, and
must be mailed within 20 days from receipt of the director’s decision.
(b) The appeal shall be a brief statement
of the acts that are the basis of the alleged violation of rights.
(2) Assignment of hearing officer:
(a) The director shall assign a hearing
officer within 10 days of receipt of the request for hearing.
(b) If any person who may appear at the
hearing, as described in Paragraph (3) of Subsection B of 8.371.4.14 NMAC, has
reason to believe that the hearing officer cannot render an impartial decision,
the person shall notify the director in writing stating the objection and the
reason(s) therefor within five days of the date of the notice of the
assignment. If the director determines
that there is a good cause, the director shall assign another hearing officer
within 10 days of receipt of the objection.
(3) Notice of hearing:
(a) The hearing officer shall conduct the
hearing within 15 days of assignment as hearing officer. The hearing officer may grant a continuance
not to exceed 15 days for good cause shown.
(b) The hearing officer shall notify the
complainant and the service provider (s) of the date, time and place of the
hearing at least five days prior to the hearing. If feasible, the hearing shall be held in the
city or town where the client resides or at a location convenient to the
client.
(c) The service provider may decline to
appear at the hearing and the hearing shall proceed. The complainant and the service provider may
settle the complaint by mutual agreement at any time prior to the hearing
unless the client objects. The
complainant shall notify the hearing officer of the settlement by withdrawing
the complaint in writing prior to the hearing.
The hearing officer shall notify the division director that the
complainant has withdrawn the complaint.
(4) Conduct of hearing:
(a) The complainant has the burden to
show by a preponderance of the evidence that:
(i) the act (s) complained occurred;
(ii) the act (s) constitutes a violation
by the service provider, employee or a person under contract with the service
provider, of rights of the client set forth in the federal or state
constitution, statutes, or authority regulations or policies designated
“client's rights”; and
(iii) the client is adversely affected.
(b) The complainant and the service
provider (s) have the right to call witnesses on their behalf, question
witnesses called by others, and present other evidence relevant to the
complaint.
(c) The hearing officer shall admit all
relevant evidence that is reasonably likely to assist him or her in making a
fully informed, fair decision. The
hearing officer may exclude irrelevant or repetitious evidence. Conformity to rules of evidence is not
required. The hearing officer's rulings
on evidence are final.
(5) Recommended decision of the hearing
officer:
(a) The hearing officer shall render a
recommended decision to the secretary of the authority or the secretary’s
designee in writing within 10 days of the hearing.
(b) The recommended decision shall
include:
(i) a statement of uncontested facts
and finding of fact on contested issues; and
(ii) a recommendation dismissing the
complaint as not supported by a preponderance of the evidence; or
(iii) a finding substantiating the complaint
and a recommendation either adopting the authority's relief or remedy or
proposing individual relief or remedy.
B. Step two:
Decision:
(1) The secretary or the secretary’s designee
may adopt the recommendation of the hearing officer or may reverse or modify
the recommendation of the hearing officer.
If the secretary or the designee modifies or reverses the recommendation
of the hearing officer, they shall state the reasons for the decision.
(2) The secretary or their designee shall
notify the persons described in Paragraph (3) of Subsection A of 8.371.4.14
NMAC of the decision in writing within 15 days of receipt of the
recommendations of the hearing officer.
(3) The decision of the secretary or the
secretary’s designee is final and is not subject to judicial review.
[8.371.4.14
NMAC - N, 7/1/2024]
8.371.4.15 SANCTIONS, CORRECTIVE ACTION OR
RELIEF:
A. Sanction, corrective action or other relief for
substantiation of a complaint may include a directive prohibiting any future
violation, a corrective action plan that shall be implemented as a condition
for the continuation of the service provider's contract or provider agreement
and enforceable under terms of the contract or provider agreement,
reimbursement or repayment by the service provider of a client's funds,
recoupment by the authority of a client's funds on behalf of the client, a
requirement that the service provider take corrective or disciplinary action
against an employee, or any other affirmative relief that is fair and
just. Sanctions imposed under this
regulation shall not include revocation or suspension of a license, denial of a
license application, a monetary penalty, fine, compensatory damages (except
reimbursement of client funds), or consequential or punitive damages except as
may be specifically provided in the agreement between the service provider and
the authority.
B. In imposing sanctions, corrective action or other relief,
the office, director or the secretary may consider prior substantiated
complaints involving the service provider, if any, data from child protective
services or adult protective services abuse or neglect reports, performance
audit reviews, and the responsiveness of the service provider to prior remedial
action imposed by the division or other authority.
C. If the complainant's allegation is substantiated and
sanction or corrective action is imposed or other relief granted, the division
may require that the service provider prepare and submit documents to the
division or allow access to records necessary to demonstrate the service
provider is in compliance with the provisions of the sanction, corrective
action or other relief.
D. If the complaint is substantiated, the notice of final
action shall state that the division may impose additional sanctions for
failure of the service providers to comply with the decision and may impose
sanctions, corrective action or other relief as provided in Subsection A of 8.371.4.15
NMAC in addition to the individual remedy or relief granted.
[8.371.4.15
NMAC - N, 7/1/2024]
8.371.4.16 ACTION OF THE DIVISION NOT
EXCLUSIVE OF OTHER ACTION:
The division shall cooperate with the health care authority licensing
and certification bureau, the long term care ombudsman, the children, youth and
families department, the department of labor, and medicaid fraud unit, as
appropriate, regarding any investigation, allegation or substantiated
complaint. Any remedy imposed by the
division for violation of authority policy or regulation does not preclude
other sanction or corrective action by other divisions of the authority or
preclude another agency or authority with jurisdiction over the subject matter
from taking action arising from the same conduct, actions or omissions.
[8.371.4.16
NMAC - N, 7/1/2024]
8.371.4.17 PUBLIC DISCLOSURE OF FINAL ACTIONS:
A. The office of quality assurance will conduct its
investigations in a manner that protects the clients’ privacy.
B. Complaints and documents, materials, or records not
otherwise exempt from public inspection shall be subject to public
inspection. Requested public records
containing information that is exempt and nonexempt form disclosure shall be
separated or redacted by the custodian prior to inspection, and the nonexempt
information shall be made available for inspection. The complaints and related documents shall
not be available for public inspection until the investigation is concluded,
action of the authority is final, and any time period allowed for review or
administrative hearing has expired.
C. Client identifying confidential information, records
pertaining to physical or mental illness or medical treatment, and records
protected form disclosure by statute or court-recognized rule are exempt from
public inspection.
D. Those portions of the division's investigation file
containing confidential sources, methods, and related investigation materials
may be exempt from public inspection on public policy grounds if the harm to
the public interest from allowing inspection outweighs the public's right to
know.
E. The authority may charge reasonable fees for copying
public records.
F. The division will track complaints to ensure that the
complaint process operates satisfactorily, meets time lines, and achieves any
program changes required of service providers.
Non-confidential data from the complaint tracking process will be
available to the public. If the division
produces periodic statistical reports containing aggregate information about
substantiated and unsubstantiated complaints, including nonpersonally
identifiable information about the complaints received, type or nature of the
allegations, frequency of complaints by type and by service provider,
resolution of substantiated complaints, tracking of corrective action and
follow-up, other investigation results, and any other data the authority deems
appropriate, the statistical reports shall be subject to public inspection.
[8.371.4.17
NMAC - N, 7/1/2024]
8.371.4.18 THIS COMPLAINT PROCEDURE IS NOT
AVAILABLE FOR APPLICANTS:
This complaint procedure is not available to review financial
eligibility determinations or denial of applications for services. Applicants for services may seek other review
that may be available under law or regulations.
[8.371.4.18
NMAC - N, 7/1/2024]
HISTORY
OF 8.371.4 NMAC: [RESERVED]