TITLE 9 HUMAN RIGHTS
CHAPTER 4 PERSONS WITH DISABILITIES
PART 21 GUARDIANSHIP SERVICES
9.4.21.1 ISSUING AGENCY: New
Mexico Developmental Disabilities Planning Council Office of Guardianship
(NMDDPC office of guardianship).
[9.4.21.1 NMAC - N,
04/14/2006]
9.4.21.2 SCOPE: These
rules apply to all New Mexico residents and other New Mexico state agencies
requesting guardianship services from the NMDDPC office of guardianship and
other private businesses that contract directly with the NMDDPC office of
guardianship to provide guardianship services.
[9.4.21.2 NMAC - N,
04/14/2006]
9.4.21.3 STATUTORY AUTHORITY:
Section 28-16B-1 through 28-16B-6 NMSA 1978 permits the NMDDPC office of
guardianship to promulgate rules in accordance with the State Rules Act to
carry out the provisions of the Office of Guardianship Act.
[9.4.21.3 NMAC - N,
04/14/2006]
9.4.21.4 DURATION:
Permanent.
[9.4.21.4 NMAC - N,
4/14/2006]
9.4.21.5 EFFECTIVE DATE: April 14, 2006, unless a later date is cited at the end of a section.
[9.4.21.5 NMAC - N,
4/14/2006]
9.4.21.6 OBJECTIVE: The objective of this rule is establish standards for the provision of guardianship services to income and resource eligible incapacitated adults who are residents of the state of New Mexico, when there are no lesser forms of intervention, such as a power of attorney or surrogate decision maker, available, and to monitor contracts that provide guardianship services.
[9.4.21.6 NMAC - N,
4/14/2006]
9.4.21.7 DEFINITIONS: Unless defined below, terms used in 9.4.21 NMAC correspond to those defined in NMSA 1978, Section 45-5-101 (2009), NMSA 1978, Section 45-1-201 or in NMSA, 1978, Section 43-1-15. The following words and terms when used in this part shall have the following meanings unless the context clearly indicates otherwise.
A. “Complaint” means an allegation of wrongdoing by a contractor or a violation of the contract with the NMDDPC office of guardianship and the contractor, including but not limited to:
(1) failure to provide appropriate services;
(2) violations of the civil rights of the wards; and
(3) abuse, neglect or exploitation of the ward.
B. “Complaint against the office of guardianship” means an allegation of wrongdoing by the NMDDPC office of guardianship or its staff, including but not limited to:
(1) failure to appropriately monitor and supervise contractors;
(2) violations of the due process rights of the protected person or contractor; and
(3) failure to comply with complaint procedures as set forth herein.
C. “Comprehensive
evaluation” is an assessment using a variety of diagnostic tools to
determine the appropriate level of intervention, if any, in
order to maximize self-reliance and independence for a protected
person as mandated by NMSA 1978,
Section 45-5-301.1 (2009).
D. “Contracted guardianship providers” means some private/public entity or individual under contract with the NMDDPC office of guardianship to act as guardian for an adjudicated
incapacitated person who has no family or friends willing, able and appropriate
to be his/her guardian.
E. “Contractor”
means an entity or individual under a contract with the NMDDPC office of
guardianship to provide some type of guardianship service; i.e., attorneys,
court visitors, or guardians.
F. “Designated entity” is a person
or organization contracted or appointed by the NMDDPC office of guardianship to
conduct the comprehensive evaluations.
[9.4.21.7 NMAC - N,
4/14/2006; A, 4/30/07; A, 9/15/11]
9.4.21.8 ELIGIBILITY:
A. The alleged
incapacitated person must be eighteen (18) years old to qualify for services
from the NMDDPC office of guardianship.
B. The alleged
incapacitated person must be financially and otherwise eligible for medicaid
or a similar public benefit.
C. For a guardianship
where the proposed guardian is not a contracted service provider, to obtain
legal services the proposed guardian’s household income must not exceed 200% of the federally established
poverty level as that term is defined by the federal HHS poverty guidelines.
(1) Proof
of income is required and is determined by the following:
(a) providing the NMDDPC office of guardianship a copy of the proposed guardian’s most recent federal income tax return and proof of all income and benefits such as unemployment compensation, child support, food stamps or social security income; or, if no income tax return, by completing a financial eligibility form provided by the office of guardianship; or
(b) proof
of qualification by the proposed guardian under any federal or state program
with income restrictions equal to or greater than that required above.
(2) At
the discretion of the director of the NMDDPC office of guardianship, exceptions
may be made for financial hardship.
(3) The
NMDDPC office of guardianship
may develop a sliding-fee scale for private guardianships for persons who do
not meet income eligibility guidelines.
(4) This program is for low income New Mexicans with very limited resources who are unable to pay for private legal services to be appointed as the guardian. The proposed guardian will be required to attest to not having net liquid assets after appropriate exclusions (which are the principal residence, vehicles used for transportation, assets used in producing income and any other asset exempt from attachment under state or federal law) to pay for the legal services. Services may be declined to a proposed guardian whose income is at or below 200% of the federal poverty level if evidence exists of sufficient resources to pay for private legal services.
[9.4.21.8 NMAC - N,
4/14/2006; A, 4/30/07; A, 9/15/11]
9.4.21.9 PRIORITIZATION OF SERVICE:
A. In general,
service will be provided based on the date of application.
B. When service requests exceed capacity, funding or resources, individuals in the categories noted in
Subparagraph C below will be prioritized to receive the first available
services, as appropriate.
C. Priority categories:
(1) high need guardianships:
(a) high
need for a guardian of last resort (with no family member or other willing,
able and appropriate to serve as guardian) for an adult protective services
(APS) referral, military veteran, Jackson class member (former resident of the
state training schools from 1987 to 1997), Foley referral (former resident of
the state training schools who was discharged between 1970 and 1987), and others;
(b) high need for a guardian with a family member or other willing, able and appropriate to serve as guardian for a military veteran, Jackson class member or Foley referral (does not include others);
(2) lesser
need guardianships:
(a) lesser need for a guardian of last resort for an APS referral, military veteran, Jackson class member or Foley referral (does not include others);
(b) lesser
need for guardian with a family member or other willing, able and appropriate
to serve as guardian for a military veteran, Jackson class member or Foley
referral (does not include others); requests for legal services paid by the
state seeking to appoint family members or other willing, able and appropriate
to serve as guardian are not in the priority categories unless the person to be
served is a military veteran, Jackson class member or Foley referral.
D. If service requests in general, including those from the Subsection C categories above, exceed the NMDDPC office of guardianship’s ability to provide services due to limited funding or resources, the NMDDPC office of guardianship may prioritize the requests by rating them according to a referred individual’s need for guardianship. Rating criterion may include such factors as the status of an individual’s support system, services, finances, medical needs, and safety and stability of placement or residence.
[9.4.21.9 NMAC - N,
4/14/2006; A, 9/15/11]
9.4.21.10 DESIGNATION OF SERVICE AREA:
Services are to be provided throughout the state of New Mexico. The NMDDPC office of guardianship
recognizes the individual sovereignty of each tribe and pueblo in the state of
New Mexico.
[9.4.21.10 NMAC - N,
4/14/2006; A, 9/15/11]
9.4.21.11 SERVICES TO BE PROVIDED BY THE
NMDDPC OFFICE OF GUARDIANSHIP:
A. The provision of
adult guardianship services to
income eligible, incapacitated persons as follows:
(1) contracting
with attorneys to petition for the appointment of probate code guardians;
(2) contracting
with entities/individuals to serve as probate code guardians;
(3) contracting
with entities/individuals to serve as visitors (court visitors) in probate code guardianship proceedings;
(4) contracting
with attorneys to serve as guardian ad litem in probate code
guardianship proceedings;
(5) serving as an interested person pursuant to Subsection 6 of Section 28-16B-3, NMSA 1978;
(6) identifying available persons to serve as
mental health treatment guardian;
(7) contracting to provide for recruitment and
training for persons interested in serving as mental health treatment guardians;
(8) providing information regarding the duties
and responsibilities of probate code guardianship, including less restrictive
alternatives; and
(9) investigating and addressing complaints made
against the NMDDPC office of
guardianship contractors.
B. The provision of
recruitment and training for persons interested in serving as probate
code guardians.
C. The provision of
information regarding the duties and responsibilities of probate code guardianship, including less restrictive
alternatives.
D. The provision of
investigative measures/ processes to address complaints made against entities and
individuals providing contracted
guardianship services.
[9.4.21.11 NMAC - N,
4/14/2006; A, 4/30/07; A, 9/15/11]
9.4.21.12 REQUIREMENTS OF CONTRACTED
GUARDIANSHIP PROVIDERS:
A. meet RFP
Requirements when published;
B. meet office of
guardianship requirements including but not limited to:
(1) comply
with all the terms of one’s contract;
(2) agree
to be paid at the state approved rate;
(3) must
comply with the Caregivers Criminal History Screening Act (See NMSA, 1978
29-17-2);
(4) must
become a registered guardian within 18 months after the award of a contract;
(5) assure
the civil rights of the incapacitated persons;
(6) guarantee
access to all records on incapacitated persons assigned through the office of
guardianship; and
(7) comply
with the office of guardianship individual caseloads, standards of practice and
ethics.
[9.4.21.12 NMAC -
N, 04/14/2006; A, 4/30/07]
9.4.21.13 REFERRAL PROCESS: Any
person interested in the well being of an alleged
incapacitated person, and seeking guardianship services to be paid for by the
NMDDPC office of guardianship, must submit or have submitted a completed
application form and provide supporting documentation to the NMDDPC office of
guardianship.
[9.4.21.13 NMAC -
N, 04/14/2006; A, 9/15/11]
9.4.21.14 COMPLAINTS AGAINST A CONTRACTED
PROVIDER WITH THE NMDDPC OFFICE OF GUARDIANSHIP:
A. A complaint shall be made in writing by the client or another person on
behalf of the client, including but not limited to a friend, relative,
advocate, or other interested person, such as a caregiver or provider. An exception to the requirement that a
complaint shall be made in writing shall be made if a reasonable accommodation
is necessary.
B. Except as provided in Subsection D of 9.4.21.14 NMAC, below, prior to
filing a complaint against a provider contracting with the NMDDPC office of
guardianship, individuals shall first
try to resolve their complaints with
the contracted provider through
that provider’s grievance process.
C. If the complaining party and contractor are unable to reach a
resolution or agreement then the complaining party may file a complaint with
the office of guardianship and may file a copy with the contractor.
D. Exceptions
shall be made to Subsections A & B of 9.4.21.14 NMAC when the NMDDPC office of guardianship has reason to believe
that an emergency situation exists or that a delay of
the investigation could result in harm to the protected person or retaliation by the contractor.
E. The complaint should include as much information as possible, including
the following:
(1) name
of the incapacitated person;
(2) name
of the contact information for the individual making the complaint on behalf of
the incapacitated person;
(3) relationship
of the complaining party to the incapacitated person;
(4) name
of the individual contractor against whom the complaint is being made;
(5) name
of the party who has attempted to resolve the complaint, if known;
(6) what
actions have been taken to attempt to resolve the complaint;
(7) details of the complaint including the
alleged wrongdoing, the involved parties and when and where the wrongdoing occurred;
F. The complaint made to the office of guardianship may be submitted by
mail or fax unless a reasonable accommodation is necessary.
G. In order to preserve the confidentiality of the incapacitated person,
the complaint shall be submitted to: The
NMDDPC Office of Guardianship; 810 W. San Mateo, Ste. C; Santa Fe, NM
87505-4144; (505) 476-7324; (505) 476-7322 (Fax).
H. Upon receipt of a verbal or written complaint, the NMDDPC office of guardianship shall:
(1) acknowledge
receipt of a the complaint in writing;
(2) notify
all parties involved; and
(3) initiate
an investigation within 15 working days of the filing of the complaint with the
NMDDPC office of the guardianship;
(4) where sufficient information is provided to allow the NMDDPC office of guardianship to continue the investigation, the NMDDPC office of guardianship will make further inquiries if possible or discontinue the investigation; justification for closure of investigations based on insufficient information will be documented.
I. A determination decision shall be made within 60 working days after the
complaint is filed with the NMDDPC
office of guardianship unless a shorter time frame is required to protect the protected
person.
J. A determination decision shall include:
(1) the
decision made;
(2) the
basis for the decision;
(3) notice
of the complaining party’s right to file a complaint about the actions taken by
the NMDDPC office of
guardianship related to the investigational process pursuant to 9.4.21.15 NMAC;
(4) further
actions to be taken by the NMDDPC
office of guardianship and the contractor which may include, but shall not be
limited to:
(a) the
imposition of a corrective action plan on the contractor; and
(b) a
referral of the complaint to other agencies for investigation and prosecution.
K. Persons objecting to the process of the complaint investigation taken
by the NMDDPC office of
guardianship may file a grievance against the NMDDPC office of guardianship with the New Mexico
human services department pursuant to 9.4.21.15 NMAC below.
L. None of these regulations restrict the due process rights of an
individual to request a less restrictive guardianship or to overturn the
decision of a guardianship contractor or the NMDDPC office of guardianship through a court of
law.
[9.4.21.14 NMAC -
N, 04/14/2006; A. 04/30/07; A, 9/15/11]
9.4.21.15 COMPLAINTS AGAINST THE NMDDPC OFFICE OF GUARDIANSHIP: Complaints
against the NMDDPC office
of guardianship or a staff member of the NMDDPC office of guardianship shall be filed with and
investigated by the human services department, by sending a complaint in
writing directly to the secretary of human services department with a copy sent
to the director of the NMDDPC
office of guardianship. (NMSA 2003 28-16B-6E)
[9.4.21.15 NMAC -
N, 04/14/2006; A, 9/15/11]
9.4.21.16 TRANSFER OF PROTECTED PERSON FROM A PRIVATE PAY GUARDIANSHIP TO A PROGRAM
FUNDED THROUGH THE NMDDPC OFFICE OF GUARDIANSHIP:
A. Purpose: It is not the intention
of the NMDDPC office of
guardianship to create a hardship on any private pay provider of guardianship
services in cases where resources are being exhausted, but in order to work in
a more collaborative fashion these procedures are being developed to move the
private pay protected persons
into the state funded program under the NMDDPC office of guardianship in a timely and reasonable manner to minimize
the impact on the protected person.
B. Requirements: In
order to affect a protected person’s transfer to a program funded through the NMDDPC office of guardianship, the private pay
guardianship must do the following:
(1) obtain
an application for services from
the NMDDPC office of
guardianship and fill it out completely (failure to do so will result in delay
of transfer);
(2) the
filing of the request for services with
the NMDDPC office of
guardianship does not guarantee the request will be granted;
(3) to
be eligible for transfer into this program, a protected person must be financially eligible for institutional medicaid
and medicaid in New Mexico;
(4) appropriate
placement must be secured by the private pay guardians for the protected
person prior to transfer to a publically funded guardian;
(5) all
necessary medical and
other information regarding the protected
person must be provided to the new
guardian in a timely manner;
(6) any
original legal documents such as birth certificates, social security cards, medicaid cards, etc. shall be turned over to the new
guardian upon appointment;
(7) legal
fees for the transferring of the case must be paid by the private provider
(this would include the closing of the conservatorship);
(8) if
the protected person has a conservatorship
and no assets, then the conservatorship must be closed prior to transfer; if
the conservatorship cannot be closed for some appropriate reason, then a
complete accounting must be given to the NMDDPC office of guardianship at the time of transfer;
(9) there
must be a burial policy for the ward; ownership is to be transferred by the
private provider to the NMDDPC
office of guardianship’s appointed guardian;
(10) these transfers will not be given any
priority status;
(11) the private pay provider will agree to
cooperate with the new guardian on matters, including, but not limited to,
providing any information the new guardian might need, which may be in the possession of the private guardian;
(12) these transfers will be effectuated according
to NMSA 1978, Section 45-5-307.
[9.4.21.16 NMAC - N,
04/14/2006; A, 9/15/11]
9.4.21.17 REQUESTS FOR INFORMATION:
A. Any requests for non-confidential information will be treated as a
request for inspection of public records under the state inspection of public
records act. (NMSA 1978, Section 14-2-1 through 14-2-12).
B. Any requests for confidential information or client specific information
will be handled according to state and federal law. (NMSA 2003 28-16B-4B).
[9.4.21.17 NMAC -
N, 04/14/2006]
9.4.21.18 COMPREHENSIVE
EVALUATIONS:
A. Depending upon the availability of funding and resources, and unless otherwise provided for by another agency or program, comprehensive evaluations for protected persons with contracted providers may be obtained through a referral to the NMDDPC office of guardianship by the contract guardian if the protected person appears to have made gains in her/his capacity or to be in need of increased protection or other such that a request for review of the guardianship by the court appears indicated.
B. Comprehensive
evaluations will occur in the following manner:
(1) The
comprehensive evaluations will be done by the entity designated by the NMDDPC office of guardianship.
(2) All contracted guardianship providers will provide the names of their protected persons who meet the criterion in Subsection A of this section at any time and upon request by the NMDDPC office of guardianship. The referral process will be established by the NMDDPC office of guardianship.
(3) The components of the comprehensive evaluation will be determined by the designated entity after consultation with the guardian.
(4) The
designated entity will set up the appointments.
(5) The
contracted guardianship provider will provide written authorization for the protected
person selected for a comprehensive
evaluation.
(6) The
contracted guardianship provider will provide the following documents at a time
and place determined by the designated entity:
(a) name
of the protected person, living
arrangements of the ward, day placement and daily activity, and relevant
contact information;
(b) medical
history and assessment history of the protected person that may come from other state and federal
programs such as the DD waiver program, medicaid,
schools, division of vocational rehabilitation, commission for the blind, etc.;
(c) the
current level of guardianship, and;
(d) any
additional information requested by the designated entity relevant to the
comprehensive evaluation.
(7) These provisions are in addition to any terms and conditions regarding comprehensive evaluations as set forth in the contract between the NMDDPC office of guardianship and the contracted guardianship provider.
(8) If
a protected person has undergone
some part of the comprehensive evaluation within the last three years, the
contracted guardianship provider may request to substitute that part of the
evaluation for the report of the evaluation undergone within the last three (3)
years. The designated entity may deny
the request, based on professional judgment, it should not be substituted. If a
substitution is allowed, the contracted guardianship provider will provide the
report of that evaluation to the designated entity.
(9) If
the contracted guardianship provider has clear and convincing evidence that a protected
person does not need an evaluation, the
contracted guardianship provider will provide to the NMDDPC office of
guardianship a short description explaining why the protected person should not be evaluated.
(10) The
NMDDPC office of guardianship or its agent has the right to review the files
and records of any protected person
under contract between the NMDDPC office of guardianship and a contracted
guardianship provider for the purpose of determining whether the protected
person should have a comprehensive
evaluation.
(11) If the NMDDPC office of guardianship determines that a protected person should undergo an evaluation, despite the justification provided in Paragraph (9) of Subsection B of 9.4.21.18 NMAC, the NMDDPC office of guardianship will send a letter to the contracted guardianship provider so stating (“Notice Letter”). If, after receipt of the notice letter, the contracted guardianship provider does not agree with the NMDDPC office of guardianship that a protected person should undergo an evaluation, the following procedure will commence.
(a) Within ten (10) working days after receiving the notice letter, the contracted guardianship provider will contact the NMDDPC office of guardianship in writing with the basis for its disagreement with the notice letter and during that same time period set up a meeting at the office of the NMDDPC office of guardianship for the purpose of attempting to resolve this issue. The contracted guardianship provider attending the meeting must have full authority to resolve this issue. The proposed location of the meeting will be at the office of the NMDDPC office of guardianship at a day and time proposed by the NMDDPC office of guardianship. The contracted guardianship provider may propose a different time and location. The meeting must be held no more than thirty (30) days from the date of receipt of the notice letter. If the parties cannot agreed on a location and time, the NMDDPC office of guardianship may petition the court pursuant to Subparagraph (d) of Paragraph (11) of Subsection B of 9.4.21.18 NMAC.
(b) If
the parties come to an agreement, the protected person may or may not undergo an evaluation
depending on the agreement reached by the parties.
(c) The
NMDDPC office of guardianship will confirm the outcome of the meeting by letter
(outcome letter) within two working days of the meeting between the parties.
(d) If
there is no agreement, the NMDDPC office of guardianship may, within fourteen
(14) working days from the date of the outcome letter, petition the court in
which the guardian was appointed to have the protected person evaluated.
[9.4.21.18 NMAC - N,
04/30/07; A, 9/15/11]
HISTORY OF 9.4.21 NMAC:
[RESERVED]