New Mexico Register / Volume XXXVI,
Issue 14 / July 29, 2025
NOTICE
OF PUBLIC HEARING
The New Mexico
Health Care Authority Division of Health Improvement is finalizing repeal and
replacement of the temporary emergency rule 8.370.8 NMAC Employee Abuse
Registry.
These regulations
apply to a broad range of New Mexico providers of health care and services and
employees of these providers who are not licensed health care professionals or
certified nurse aides. This rule
requires that providers check with the registry and avoid employing an
individual on the registry. This rule
provides for the investigation and determination of complaints alleging abuse,
neglect or exploitation of recipients of care or services by employees. This rule further requires listing employees
with substantiated registry-referred abuse, neglect or exploitation on the
registry, following an opportunity for a hearing. This rule supplements other pre-employment
screening requirements currently applicable to health care providers, such as
the requirement for criminal history screening of caregivers employed by care
providers subject to the Caregiver Criminal History Screening Act, Sections
29-17-1 et seq. NMSA 1978, and that Act’s implementing rule, 8.370.5 NMAC. It also supplements requirements for
pre-employment screening of certified nurse aides applicable to nursing
facilities pursuant to 42 CFR Sections 483.75(e) and 488.335; and 8.370.25
NMAC. This rule does not address the
consequences of abuse, neglect, or exploitation for which a provider, as
distinguished from an employee, is responsible.
Specifically, the
changes include: 8.370.8 NMAC
Repeal/replace the
expiring emergency rule to establish new updated rule to comply with federal
regulations as well as NMAC rule requirements. Specifically, reformatting Section 7
definitions, updating the reporting contact information in Section 9, updating
the investigation timelines in Section 10, and the severity standard in Section
11. The proposed rule may be viewed at the Division of Health Improvement
website at https://www.hca.nm.gov/dhi-regulations/.
A public hearing
to receive testimony on this proposed rule will be held on September 3, 2025, 9:00
a.m-12:00 p.m. The public hearing will be a Hybrid, via Zooms as well as in
person, pursuant to Section 14-4-5.6 NMSA 1978.
Join on your
computer, mobile app, or room device.
You are invited to
a Zoom webinar!
When: September 3,
2025 9:00 AM Mountain Time (US and Canada)
Topic: DHI Rules
Hearing ( 8.321.13, 8.370.3, 8.370.8, 8.370.12, 8.370.17 )
Description:
8.321.13 Adult
accredited Residential Treatment Centers
8.370.3 Health
facilities licensing fees & procedures
8.370.8 Employee
Abuse Registry
8.370.12
requirements for acute care , limited services and specialty hospitals
8.370.17
requirements for freestanding birth centers
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All written comments
may be dropped off during the scheduled hearing time (see above) at the
Division of Health Improvement offices, 5300 Homestead Rd. NE, Albuquerque NM
87110 at the Hozho conference room #109.
Individuals
wishing to testify may contact the Division of Health Improvement (DHI), P.O.
Box H, Santa Fe, NM 87504, or by calling (505) 476-9093.
Individuals who do
not wish to attend the hearing may submit written or recorded comments. Written or recorded comments must be received
by 5:00 p.m. on the date of the hearing, September 3, 2025. Please send comments to: Division of Health
Improvement P.O. Box H Santa Fe, NM 87504, Recorded comments may be left at
(505) 476-9093. You may send comments
electronically to Nancy Laster DHI Division Director at: Nancy.Laster@hca.nm.gov. Written and recorded comments will be posted
to the agency’s website within 3 days of receipt. All comments will be given the same
consideration as oral testimony made at the public hearing.
If you are a
person with a disability and you require this information in an alternative
format, or you require a special accommodation to participate in any HSD public
hearing, program, or service, please contact the American Disabilities Act
Coordinator, at Office-505-709-5468, Fax-505-827-6286 or through the New Mexico
Relay system, toll free at #711. The
Department requests at least a 10-day advance notice to provide requested
alternative formats and special accommodations.
CHAPTER 370 OVERSIGHT OF LICENSED HEALTHCARE FACILITIES
AND
COMMUNITY BASED
WAIVER PROGRAMS
PART 8 EMPLOYEE
ABUSE REGISTRY
8.370.8.1 ISSUING
AGENCY: New Mexico Health Care Authority.
[8.370.8.1 NMAC - Rp, 8.370.8.1 NMAC xx/xx/2025]
8.370.8.2 SCOPE: This rule
applies to a broad range of New Mexico providers of health care and services
and employees of these providers who are not licensed health care professionals
or certified nurse aides. This rule
requires that providers check with the registry and avoid employing an
individual on the registry. This rule
provides for the investigation and determination of complaints alleging abuse,
neglect or exploitation of recipients of care or services by employees. This rule further requires listing employees
with substantiated registry-referred abuse, neglect or exploitation on the
registry, following an opportunity for a hearing. This rule supplements other pre-employment
screening requirements currently applicable to health care providers, such as
the requirement for criminal history screening of caregivers employed by care
providers subject to the Caregiver Criminal History Screening Act, Sections
29-17-1 et seq. NMSA 1978, and that Act’s implementing rule, 8.370.5 NMAC. It also supplements requirements for
pre-employment screening of certified nurse aides applicable to nursing
facilities pursuant to 42 CFR Sections 483.75(e) and 488.335; and 8.370.25
NMAC. This rule does not address the
consequences of abuse, neglect, or exploitation for which a provider, as
distinguished from an employee, is responsible.
[8.370.8.2 NMAC - Rp, 8.370.8.2 NMAC xx/xx/2025]
8.370.8.3 STATUTORY
AUTHORITY: The Employee Abuse
Registry Act, Sections 27-7A-1 to 27-7A-8 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.
[8.370.8.3 NMAC - Rp, 8.370.8.3 NMAC xx/xx/2025]
8.370.8.4 DURATION : Permanent.
[8.370.8.4 NMAC -
Rp, 8.370.8.4 NMAC xx/xx/2025]
8.370.8.5 EFFECTIVE
DATE: xxxxx xx, 2025,
unless a later date is cited at the end of a section.
[8.370.8.5 NMAC - Rp, 8.370.8.5 NMAC xx/xx/2025]
8.370.8.6 OBJECTIVE: The objective of this rule is to implement the
Employee Abuse Registry Act. The rule is
intended to provide guidance as to the rights and responsibilities under the
Employee Abuse Registry Act of providers, employees of providers, the health
care authority and the adult protective services division of the department of
aging and long-term services, and the public including recipients of care and
services from providers.
[8.370.8.6 NMAC - Rp, 8.370.8.6 NMAC xx/xx/2025]
8.370.8.7 DEFINITIONS:
A. Definitions
beginning with “A”:
(1) “Abuse” means:
(a) knowingly, intentionally or
negligently and without justifiable cause inflicting physical pain, injury or
mental anguish, and includes sexual abuse and verbal abuse; or
(b) the intentional deprivation by a
caretaker or other person of services necessary to maintain the mental and
physical health of a person.
(2) “Adjudicated” means with
respect to a substantiated registry-referred complaint, a final determination
by the Secretary following a hearing, or by a court, that the employee
committed abuse, neglect, or exploitation requiring the listing of the employee
on the registry.
(3) “APS” means the adult
protective services division of the New Mexico aging and long-term services
department.
B Definitions
beginning with “B”: “Behavioral
change” means an observable manifestation of psychological, emotional or
mental harm, injury, suffering or damage, and includes, but is not limited to,
crying, hysterical speech, or disruptions to sleeping, working, eating, speech,
nonverbal communications, socially interacting, or other activities which were
performed routinely before the harm, injury, suffering, or damage.
C. Definitions
beginning with “C”:
(1) “Complaint” means any report,
assertion, or allegation of abuse, neglect, or exploitation made by a reporter
to the incident management system and includes any reportable incident that a
licensed or certified health care facility or community-based services provider
is required to report under applicable law.
(2) “Custodian” means the person
assigned by the secretary to maintain the registry in accordance with this rule
and the Employee Abuse Registry Act.
D. Definitions
beginning with “D”: “Direct care”
means face-to-face services provided or routine and unsupervised physical or
financial access to a recipient of care or services.
E. Definitions
beginning with “E”:
(1) “Employee” means a person
employed by or on contract with a provider, either directly or through a
third-party arrangement to provide direct care.
“Employee” does not include a New Mexico licensed health care
professional practicing within the scope of the professional’s license or a
certified nurse aide practicing as a certified nurse aide.
(2) “Exploitation” means an unjust
or improper use of a person’s money or property for another person’s profit or
advantage, pecuniary or otherwise.
F. Definitions beginning with “F”:[RESERVED]
G. Definitions beginning with “G”:[RESERVED]
H. Definitions beginning with “H”:[RESERVED]
I. Definitions
beginning with “I”: “Investigation”
means a systematic fact-finding process that has as its goal the gathering of
all information relevant to making a determination
whether an incident of abuse, neglect or exploitation occurred.
J. Definitions beginning with “J”:[RESERVED]
K. Definitions
beginning with “K”:[RESERVED]
L. Definitions beginning with “L”: “Licensed health care professional” means a
person who is required to be licensed, and is licensed, by a New Mexico health
care professional licensing board or authority, and the issuance of whose
professional license is conditioned upon the successful completion of a
post-secondary academic course of study resulting in a degree or diploma,
including physicians and physician assistants, audiologists, acupuncture
practitioners, dentists, registered nurses, licensed practical nurses,
chiropractors, pharmacists, podiatrists, certified nurse-midwife, nurse
practitioners, occupational therapists, optometrists, respiratory therapists,
speech language pathologists, pharmacists, physical therapists, psychologists
and psychologist associates, dietitians, nutritionists and social workers.
M. Definitions
beginning with “M”:
(1) “Manager” means the authority
employee designated by the secretary to manage the employee abuse registry
program pursuant to the New Mexico Employee Abuse Registry Act and this rule.
(2) “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 includes a mental sensation of extreme or excruciating pain.
N. Definitions
beginning with “N”: “Neglect”
means, subject to a person’s right to refuse treatment and subject to a
provider’s right to exercise sound medical discretion, the failure of an
employee to provide basic needs such as clothing, food, shelter, supervision,
protection and care for the physical and mental health of a person or failure
by a person that may cause physical or psychological harm. Neglect includes the knowing and intentional
failure of an employee to reasonably protect a recipient of care or services
from nonconsensual, inappropriate or harmful sexual contact, including such
contact with another recipient of care or services.
O. Definitions
beginning with “O”:[RESERVED]
P. Definitions
beginning with “P”: “Provider”
means:
(1) an intermediate care facility for the mentally
retarded;
(2) a rehabilitation facility;
(3) a home health agency;
(4) a homemaker agency;
(5) a home, facility, nursing home for the
aged or disabled;
(6) a group home;
(7) an adult foster care home;
(8) a case management entity that provides
services to elderly people or people with developmental disabilities;
(9) a corporate guardian;
(10) a private residence that provides
personal care, adult residential care or natural and surrogate family services
provided to persons with developmental disabilities;
(11) an adult daycare center;
(12) a boarding home; an adult residential
care home, or assisted living facility;
(13) a residential service or habilitation
service authorized to be reimbursed by medicaid;
(14) any licensed or medicaid-certified
entity or any program funded by the aging and long-term services department
that provides respite, companion or personal care services;
(15) programs funded by the children, youth
and families department that provide homemaker or adult daycare services;
(16) and any other individual, agency or
organization that provides respite care or delivers home- and community-based
services to adults or children with developmental disabilities or physical
disabilities or to the elderly, but excluding a managed care organization
unless the employees of the managed care organization provide respite care, deliver home- and community-based
services to adults or children with developmental disabilities or physical
disabilities or to the elderly;
(17) adult accredited residential treatment
centers;
(18) crisis triage centers.
Q. Definitions
beginning with “Q”: [RESERVED]
R. Definitions
beginning with “R”:
(1) “Registry” means an electronic database operated
by the authority that maintains current information on substantiated
registry-referred employee abuse, neglect or exploitation, including the names
and identifying information of all employees who, during employment with a
provider, engaged in a substantiated registry-referred or an adjudicated
incident of abuse, neglect or exploitation involving a recipient of care or
services from a provider.
(2) “Reporter” means a person who
or an entity that reports possible abuse, neglect or exploitation to the
authority’s incident management system.
S. Definitions beginning with “S”:
(1) “Secretary” means the secretary of the health
care authority.
(2) “Sexual abuse” means the
inappropriate touching of a recipient of care or services by an employee 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 the employee for sexual purpose, or promoting or observing for sexual
purpose any activity or performance involving play, photography, filming or
depiction of acts considered pornographic.
(3) “Substantiated” means the
verification of a complaint based upon a preponderance of reliable evidence
obtained from an appropriate investigation of a complaint of abuse, neglect, or
exploitation.
(4) “Substantiated registry-referred”
means a substantiated complaint that satisfies the severity standard for
referral of the employee to the registry.
T. Definitions
beginning with “T”: [RESERVED]
U.
Definitions beginning with “U”: “Unsubstantiated”
means that that the complaint’s alleged abuse, neglect or exploitation did not
or could not have occurred, or there is not a preponderance of reliable
evidence to substantiate the complaint, or that there is conflicting evidence
that is inconclusive.
V. Definitions
beginning with “V”: “Verbal abuse”
means profane, threatening, derogatory, or demeaning language, spoken or
conveyed by an employee with the intent to cause pain, distress or injury, and
which does cause pain, distress or injury as objectively manifested by the
recipient of care or services.
W. Definitions beginning with “W”: [RESERVED]
X. Definitions beginning with “X”: [RESERVED]
Y. Definitions beginning with “Y”: [RESERVED]
Z. Definitions beginning with “Z”: [RESERVED]
[8.370.8.7 NMAC - Rp, 8.370.8.7 NMAC xx/xx/2025]
8.370.8.8 REGISTRY
ESTABLISHED; PROVIDER INQUIRY REQUIRED: Upon the
effective date of this rule, the authority has established and maintains an
accurate and complete electronic registry that contains the name, date of
birth, address, social security number, and other appropriate identifying
information of all persons who, while employed by a provider, have been
determined by the authority, as a result of an investigation of a complaint, to
have engaged in a substantiated registry-referred incident of abuse, neglect or
exploitation of a person receiving care or services from a provider. Additions and updates to the registry shall
be posted no later than two business days following receipt. Only authority staff designated by the
custodian may access, maintain and update the data in the registry.
A. Provider requirement to inquire of
registry: A provider, prior to employing or
contracting with an employee, shall inquire of the registry whether the
individual under consideration for employment or contracting is listed on the
registry.
B. Prohibited employment: A provider may not employ or contract
with an individual to be an employee if the individual is listed on the
registry as having a substantiated registry-referred incident of abuse, neglect
or exploitation of a person receiving care or services from a provider.
C. Applicant’s identifying
information required: In making the inquiry to the registry
prior to employing or contracting with an employee, the provider shall use
identifying information concerning the individual under consideration for
employment or contracting sufficient to reasonably and completely search the
registry, including the name, address, date of birth, social security number,
and other appropriate identifying information required by the registry.
D. Documentation of inquiry to
registry: The provider shall maintain documentation
in the employee’s personnel or employment records that evidences the fact that
the provider made an inquiry into the registry concerning that employee prior
to employment. Such documentation must
include evidence, based on the response to such inquiry received from the
custodian by the provider, that the employee was not listed on the registry as
having a substantiated registry-referred incident of abuse, neglect or exploitation.
E. Documentation for other staff: With
respect to all employed or contracted individuals providing direct care who are
licensed health care professionals or certified nurse aides, the provider shall
maintain documentation reflecting the individual’s current licensure as a
health care professional or current certification as a nurse aide.
F. Consequences of noncompliance: The
authority or other governmental agency having regulatory enforcement authority
over a provider may sanction a provider in accordance with applicable law if
the provider fails to make an appropriate and timely inquiry of the registry,
or fails to maintain evidence of such inquiry, in connection with the hiring or
contracting of an employee; or for employing or contracting any person to work
as an employee who is listed on the registry.
Such sanctions may include a directed plan of correction, civil monetary
penalty not to exceed $5,000 per instance, or termination or non-renewal of any
contract with the authority or other governmental agency.
[8.370.8.8 NMAC - Rp, 8.370.8.8 NMAC xx/xx/2025]
8.370.8.9 INCIDENT
MANAGEMENT SYSTEM INTAKE: The authority has established an incident
management system for receipt, tracking and processing of complaints. Complaints may be reported to the authority’s
incident management system using the authority website’s on-line form
completion utility, by telephone using a toll-free number, facsimile, U.S. mail, email, or in-person. The method of reporting preferred by the
authority is on-line form completion via the authority’s website, https://www.hca.nm.gov/report-abuse-neglect-exploitation/. The toll-free telephone line is staffed by the
authority during normal business hours and after hours. A message system is
also available for reporting complaints during non-business hours .
A. Incident report form: Complaints of suspected abuse, neglect or
exploitation will be reported by providers on the department’s incident report
form if possible. This form and
instructions for completing and filing the form are available at the
department’s website or may be obtained from the department by calling the
toll-free number 800-752-8649 or 866-654-3219.
B. Reportable intake information: Reports
of suspected abuse, neglect or exploitation made to the authority by persons
who do not have access to, or are unable to use, the authority’s current
incident report form shall provide as specific a description of the incident or
situation as possible, and shall contain the following information where
applicable:
(1) the location, date and time or shift
of the incident;
(2) the name, date of birth, social
security number, gender, address and telephone number of the person the
reporter suspects to have been abused, neglected, or exploited; and the name,
address and telephone number of the guardian or health care decision maker for
such person, if applicable;
(3) the names, addresses, phone numbers
and other identifying information of the providers who provide services to the
person the reporter suspects to have been abused, neglected, or exploited;
(4) the names, addresses, phone numbers
and other identifying information of the following people who the reporter
believes may have been involved with, or have knowledge of, the incident;
provider’s staff and employees; family members or guardians of the person the
reporter suspects to have been abused, neglected, or exploited; other health
care professionals or facilities; and any other persons who may have such
knowledge;
(5) the condition and status of the person
the reporter suspects to have been abused, neglected, or exploited;
(6) the reporter’s name, address,
telephone number and other contact information, together with the name and
address of the provider with whom the reporter is employed, if applicable.
C. Method of filing complaint: The
completed incident report form must be filed with the department. It may be filed by use of the department’s
on-line form completion.
[8.370.8.9 NMAC - Rp, 8.370.8.9 NMAC xx/xx/2025]
8.370.8.10 COMPLAINT
PROCESSING:
A. Assignment of complaint: The
manager or designee shall review the complaints, reports or allegations of
abuse, neglect or exploitation, prioritize these complaints and assign
appropriate authority staff to investigate when warranted, and refer the
complaint, report, or allegation to APS, and other appropriate oversight
agencies for investigation.
(1) Assignment shall be made to
appropriate staff of the authority of all complaints of abuse, neglect or
exploitation involving a provider for whom the authority has oversight
authority or for whom the authority has agreed to investigate.
(2) Referral shall be made to APS of
complaints of abuse, neglect or exploitation in all instances where the
complaint involves a provider of medicaid waiver
services administered by the aging and long-term services department and the
provider is not otherwise licensed by or under contract with the authority.
(3) The manager shall prioritize the
complaints and ensure that the complaints that allege the most serious
incidents of abuse, neglect or exploitation, or that present a high risk of
future harm, are promptly investigated.
B. Immediate threat to health or
safety: In instances where the investigation
determines that there exists an immediate threat to the health or safety of a
person in the care of a provider, the authority or APS, in accordance with
applicable statutory authority, will make the necessary arrangements or
referrals to ensure the protection of persons at risk of harm or injury. The authority will take appropriate action to
eliminate or reduce the immediate threat to health or safety with respect to
providers it licenses or with whom it contracts.
C. Conducting the investigation: The
authority investigation of complaints will follow the procedures in this
rule. The investigations conducted by
APS will comply with applicable APS rules or with the provisions herein.
(1) The investigators shall gather all
relevant evidence, weigh the evidence including making credibility
determinations. Individuals from whom
information is gathered may include the reporter, witnesses identified by the
reporter, listed on the incident report form or discovered during the
investigation, the alleged victim, appropriate representatives of the provider,
medical personnel with relevant information, family members and guardians of
the alleged victim, any employee suspected of abuse, neglect or exploitation,
other recipients of care and services, and other persons possibly having
relevant information.
(2) Physical injuries that are the subject
of the complaint will be observed in person and documented. Complete documentation must be obtained of
all objectively verifiable manifestations of mental anguish, verbal abuse,
sexual abuse or neglect on the part of the recipient of care or services.
(3) The investigator will generally follow
authority guidelines addressing face-to- face individualized interviews,
telephonic interviews, witness statements and documentation of contacts.
(4) The investigator will follow
established guidelines for clinical consultations.
(5) In instances where the investigation
results in discovery of other, unrelated instances of possible abuse, neglect
or exploitation, the investigator will file an incident report form with the
incident management system. However,
additional allegations involving the same complaint as the one under
investigation are considered the same case and will not be separately reported,
although the investigator may supplement the Incident Report.
(6) At any time during the investigation,
the manager shall make referrals to other licensing authorities based upon
information of possible violations of applicable health facility, community
provider or health care professional standards.
(7) The investigator will submit an investigation report to
the manager with recommendations as to whether the complaint is:
(a) unsubstantiated;
(b) substantiated; or
(c) substantiated registry referred.
(8) Where appropriate, the investigation
report may make findings and recommendations with respect to provider
responsibility for abuse, neglect or exploitation.
(9) The manager shall review the
investigation report and recommendations and shall make a
determination whether the complaint of abuse, neglect or exploitation is
substantiated.
(10) If the manager determines, as a result of the manager’s review of the investigation
report and recommendations, that the complaint is substantiated, the manager
shall apply the appropriate severity standard to the substantiated complaint to
further determine if the complaint is substantiated registry referred.
D. Investigation file and report: The
authority shall establish an investigation file, which shall contain all
applicable information relating to the complaint including the incident report
form, correspondence, investigation, referrals, determinations, secretary’s
decision, and notices of appeal.
Following the investigation and determination by the manager, the
complaint and investigation file will be maintained by the custodian. The investigator, or the investigator from
the lead agency in a joint investigation, shall prepare and submit a written
investigation report. The investigation
report shall be part of the investigation file.
The investigation report shall contain a review of the evidence obtained
during the investigation, including but not limited to:
(1) interviews conducted and written
statements;
(2) interviews and statements reviewed
that were originally conducted or obtained by other entities such as the
provider, other health care facilities and medical providers, or law
enforcement;
(3) documents, diagrams, photographs and
other tangible evidence obtained or reviewed;
(4) a description of any actions taken by
the provider in response to the complaint or situation under investigation;
and,
(5) analysis of the evidence and
recommendations.
E. Timeline and processing of a
complaint: The investigation of each complaint shall
be completed within the timelines established by the authority.
(1) The manager shall review the
investigatory findings and recommendations and make a
determination as to whether the complaint of abuse, neglect or
exploitation is substantiated registry referred.
(2) The manager may issue a specific
extension of any complaint processing deadline if reasonable grounds exist for
such extension and the reasons are set out in the written extension. The written extension is included in the
investigation file. Grounds for an
extension may include, but are not limited to, the temporary non-availability
of witnesses or documentary evidence, or the need for information not yet
available from other entities that may be involved with an investigation into
the facts that form the basis of the complaint, including the office of the
medical investigator and agencies charged with law enforcement, auditing,
financial oversight, fraud investigation, or advocacy.
F. Validity of enforcement actions: Failure
by the authority or APS to comply with the procedures or time requirements set
out in this section does not abrogate or invalidate any action taken against an
employee pursuant to this rule, or any action taken against a provider for
noncompliance with this rule or any other applicable law or regulation. However, any such failure may be admitted
into evidence at a hearing.
[8.370.8.10 NMAC - Rp, 8.370.8.10 NMAC xx/xx/2025]
8.370.8.11 SEVERITY
STANDARD: A determination of
the severity of all substantiated complaints of abuse, neglect or exploitation
is made for the purpose of deciding if the employee is to be referred for
placement on the registry. The
determination of the severity of the substantiated complaint of abuse, neglect
or exploitation is based upon application of the severity standards in this
section. A substantiated complaint that
satisfies the severity standard in this section is a substantiated
registry-referred complaint. A
substantiated complaint that does not satisfy the severity standard in this
section will not be referred to the registry.
Severity is determined by assessing the impact of the substantiated
abuse, neglect, or exploitation on the recipient of care or services, and by
assessing the employee for aggravating factors.
In assessing the impact of abuse, neglect or exploitation, a reasonable
person standard shall apply when the harmed individual is not able to express
their feelings, when there is no discernable response from the harmed
individual, or when circumstances do not permit a direct evaluation of the
individual’s psychosocial outcome. Such circumstances may include, but are not
limited to, the individual’s death, cognitive impairments, physical
impairments, insufficient documentation by the facility, or when an
individual’s reaction to a deficient practice is markedly incongruent with the
level of reaction a reasonable person in the individual’s position would have
to the deficient practice.
A. Abuse: A substantiated complaint of abuse meets
the severity standard if:
(1) the abuse results
in, or is a contributing factor to, death;
(2) the abuse results in the infliction of
a physical injury.
(3) the abuse results in any injury for
which criminal charges are brought against the employee resulting in a plea or
conviction;
(4) the abuse results in the infliction of
pain.
(5) the abuse causes significant mental
anguish as evidenced by the victim’s descriptions, behavioral changes, or by
applying a reasonable person standard.
(6) the abuse is sexual abuse.
(7) the abuse is verbal abuse that causes mental anguish, including psychological
or emotional damage, as evidenced by behavioral changes or
physical symptoms, or by applying a reasonable person standard.
(8) the employee used alcohol or a
controlled substance at or near the time of the substantiated abuse; or
(9) the employee used, brandished or
threatened to use, a weapon in connection with the substantiated.
B. Neglect: A substantiated complaint of neglect
meets the severity standard if:
(1) the neglect results in, or is a
contributing factor to, death;
(2) the neglect results in the infliction
of a physical injury or emotional injury.
(3) the neglect results in any injury for
which criminal charges are brought against the employee resulting in a plea or
conviction;
(4) the neglect results in the infliction
of pain.
(5) the neglect causes mental anguish as
evidenced by the victim’s descriptions, or behavioral changes, or by applying a
reasonable person standard; or,
(6) the employee used alcohol or a
controlled substance at or near the time of the substantiated neglect.
C. Exploitation: A
substantiated complaint of exploitation meets the severity standard where
unjust or improper use of the money or property belonging to the recipient of
care or services results in:
(1) an objectively quantifiable loss, the
value of which exceeds the lesser of either:
(a) $100.00; or,
(b) twenty - five percent the monthly
income available to the recipient of care or services for purchasing personal
items or discretionary spending; or
(2) a subjectively substantial loss to the
recipient of care or services due to a special attachment to the property, as
demonstrated by anger, fear, frustration, depression or behavioral changes
caused by the loss.
D. Aggravating factors: A
substantiated complaint of abuse, neglect or exploitation meets the severity
standard requiring referral of the employee for placement on the registry
where:
(1) the employee used alcohol or a
controlled substance at or near the time of the substantiated abuse, neglect or
exploitation; or
(2) the employee used, brandished or
threatened to use, a weapon in connection with the substantiated abuse, neglect
or exploitation.
[8.370.8.11 NMAC - Rp, 8.370.8.11 NMAC xx/xx/2025]
8.370.8.12 PROVIDER
COOPERATION:
A. Access
to provider by investigators: The provider shall provide immediate
physical access to the provider’s entire facility, or its service delivery
sites to investigators from the authority or APS. The investigators may require such access
during any or all shifts.
B. Access
to provider records: The
provider shall provide to investigators from the authority or APS immediate
access to all information obtained as a result of the
provider’s own internal investigation of the matters that form the basis of the
complaint, including but not limited to written statements, interviews,
affidavits, physical items, medical information, electronic and computer data,
and photographic information.
C. Interviews: Investigators from the
authority or APS shall have a reasonable opportunity to conduct confidential
interviews with any person who may have relevant information relating to the
complaint, including employees and other staff including licensed health care
professionals and certified nurse aides, other licensed health care
professionals and other provider staff, recipients of care or services from the
provider and their family members, guardians, health care decision makers and
friends.
D. Physical access to recipients of
care and services: The provider must allow reasonable access
to individuals receiving care or services from the provider to investigators
from the authority or APS when such investigators announce that they are
investigating a complaint. Such access
may be telephonic or face-to-face.
E. Access to the provider’s records,
patient trust accounts and patient property: The provider must provide
immediate access to investigators from the authority or APS to the provider’s
billing records, patient trust accounts, representative payee records, patient
care and medical records, and patient property.
In addition, the provider must assure access to employee and personnel
records, including documentation showing provider inquiry to the registry.
F. Copying: The
access required to be provided to investigators includes copying paper
documents and printing and copying electronic and computer records or
data. Copied documents shall be retained
in accordance with applicable state retention policies.
G. Consequences of provider’s denial
of cooperation: The authority shall administer sanctions
for a provider’s failure to comply with the Employee Abuse Registry Act,
including failure to provide access as required herein to conduct
investigations of complaints, and such sanctions include a directed plan of
correction, a civil monetary penalty not to exceed $5,000, or such sanctions as
are available under applicable contract or licensing provisions.
[8.370.8.12 NMAC - Rp, 8.370.8.12 NMAC xx/xx/2025]
8.370.8.13 NOTIFICATION
FOLLOWING INVESTIGATION:
A. Notification to provider and
employee: If the authority or APS
determines, following an investigation, that an instance of either
substantiated or substantiated registry-referred employee abuse, neglect, or
exploitation has occurred, then the authority, if it substantiated the
complaint, or APS, if it substantiated the complaint, shall promptly notify the
employee and the provider.
B. Required information for
substantiated registry-referred complaints: The notice to the provider
and employee for substantiated registry-referred complaints shall be by
certified mail and shall include the following information.
(1) The nature of the abuse, neglect, or
exploitation.
(2) The date and time of the occurrence.
(3) The right to request a hearing, and
the time and manner for requesting a hearing.
(4) The fact that the substantiated
registry-referred findings will be reported to the registry, once the employee
has had an opportunity for a hearing.
(5) The failure by the employee to request
a hearing in writing within 30 calendar days from the date of the notice shall
result in the reporting of the substantiated findings to the registry and the
provider.
C. Required information for
substantiated complaints. The notice
to the provider and employee for substantiated complaints may be by mail or by
email and shall include the following information.
(1) The nature of the abuse, neglect, or
exploitation.
(2) The date and time of the occurrence.
(3) The fact that the substantiated
complaint was not sufficiently severe to warrant reporting the employee to the
registry.
(4) The fact that the employee may not
request a hearing.
D. Unsubstantiated complaints: Notice of a determination that an
investigated complaint is unsubstantiated shall be mailed or emailed to the
provider following such determination.
E. APS notification to the authority: APS shall notify the manager of
substantiated complaints of abuse, neglect and exploitation, and substantiated
registry-referred complaints of abuse, neglect and exploitation.
[8.370.8.13 NMAC - Rp, 8.370.8.13 NMAC xx/xx/2025]
8.370.8.14 HEARINGS: Hearings are provided to employees by either the
authority or APS. This section provides
rules applicable to hearings held by the authority.
A. Request for hearing: An
employee may request an evidentiary hearing if the employee is notified that as a result of substantiated registry-referred findings of
abuse, neglect, or exploitation the employee will be reported to the
registry. The request for a hearing
shall be made to the authority if the authority conducted the investigation and
issued the notice. The employee’s
request for hearing shall be made to APS if APS conducted the investigation and
issued the notice. A provider may not
request a hearing pursuant to the Employee Abuse Registry Act. The following applies to hearings properly
requested of the authority.
(1) The request for a hearing shall be in
writing and mailed or delivered to the New Mexico health care authority at the
address set forth in the notice.
(2) The request for hearing shall include
a copy of the notice.
(3) The request for hearing must be mailed
or hand-delivered no later than 30 calendar days after the date of the notice.
B. Scheduling order: The
authority, or the hearing officer, shall issue a scheduling order that sets the
hearing at a location reasonably convenient for the employee and at a date and
time reasonably convenient to the parties.
The scheduling order shall establish deadlines for completion of
discovery and provide for the filing of a confidentiality order. The hearing shall be scheduled within 30
calendar days following the authority’s receipt of the request for
hearing. Either party may request a
continuance of the hearing for good cause.
If the hearing is continued it shall be rescheduled at the earliest date
and time available to the parties.
C. Hearing officer. The
hearing will be conducted before an impartial and independent hearing officer
of the authority. The hearing officer is
not required to be an attorney. Upon
appointment, the hearing officer shall establish an official file of the
case. The hearing officer shall resolve
all prehearing matters, including amendment of the scheduling order, schedule
and conduct prehearing conferences, rule on prehearing motions, and resolve
discovery disputes. The hearing officer
will preside over the hearing and allow each party an opportunity to present
its case, and shall resolve all motions, evidentiary issues and other matters
as may be necessary. Within 30 calendar
days of the conclusion of the hearing the hearing officer will issue a report
and recommended decision to the secretary.
D. Parties: The parties to the hearing
are the authority, through the manager or designee, and the employee. Each party may be represented by an attorney.
E. Confidentiality: The
hearing officer shall require the filing of an appropriate signed
confidentiality order in which each party agrees to maintain and protect the
confidentiality of all individually identifiable health information that is, or
may be, used or disclosed at any time during the course of
the entire proceeding in accordance with applicable state and federal law and
regulations. Refusal or failure to sign
an appropriate confidentiality order constitute grounds for denying discovery
to the non-signing party, limiting the number and testimony of the non-signing
party’s witnesses, limiting the admission of evidence that discloses
individually identifiable health information, and the imposition of other
appropriate measures to limit the scope of disclosure of individually
identifiable health information to the non-signing party.
F. Discovery:
(1) Exhibit and witness lists will be
exchanged between the parties and provided to the hearing officer prior to the
hearing by the parties in accordance with the scheduling order, any prehearing
order, or by agreement of the parties.
The witness list shall include a summary of the subject matter of the
anticipated testimony of each witness listed.
(2) No depositions are allowed except by
order of the hearing officer upon a showing that the deposition is necessary to
preserve the testimony of persons who are sick or elderly, or persons who will
not be able to attend the hearing.
Pursuant to provisions in the scheduling order or upon agreement of the
parties, and with the consent of the witness if the witness is not employed by
the authority or another governmental entity, a party may interview witnesses
identified by the other party at a reasonable time and in a reasonable manner.
(3) Production of documents. Upon request by the employee, the authority
shall provide a copy of the investigation to the employee. The parties may request the production of
other relevant documents in accordance with the scheduling order or other
discovery order.
G. Hearing procedures: The
hearing shall be closed to the public.
The hearing officer shall conduct the hearing in an efficient and
orderly manner that respects the rights of the parties to present their cases. The hearing officer shall maintain proper
decorum and shall assure that all participants in the hearing are courteous to
one another. The hearing officer is
authorized to resolve motions and other disputes before and during the hearing.
(1) Recording. The hearing officer will cause a record to be
made of the hearing and retained in the official file. Generally, such record is made by use of
commonly available audio recording technology.
A log of the recording shall be maintained.
(2) Order of presentation at hearing. The authority shall present its case, the
employee shall present the employee’s case, and the authority may present its
rebuttal case.
(3) Public. The hearing is closed, nonpublic hearing.
(4) Evidence. The New Mexico rules of evidence do not
apply, although they may be referred to for guidance as to type of evidence
that may be admitted. Generally,
evidence shall be admitted if it is of a type relied upon by reasonable persons
in the conduct of important affairs.
Proffered evidence may be excluded if it is not relevant or is
repetitious or cumulative.
(5) Telephonic testimony. Upon timely notice to the opposing party and
the hearing officer and with the approval of the hearing officer, the parties
may present witnesses by telephone, or live video.
(6) Recommended decision. The hearing officer shall issue a recommended
decision to the secretary within 30 days of the closing of the hearing and
transfer the official record to the custodian.
(7) The custodian shall maintain the
official record of the hearing, which shall include the recommendation of the
hearing officer and the secretary’s adjudicated decision.
H. Secretary’s decision: Within
10 business days of receipt of the authority’s or the APS’ hearing officer
recommendation, the secretary of the authority shall issue a final decision and
promptly provide the parties with a copy.
If the decision of the secretary finds that the employee was responsible
for abuse, neglect or exploitation of sufficient severity for referral to the
registry, it shall be the adjudicated decision of abuse, neglect or
exploitation.
I. Judicial review: An
employee may appeal the secretary’s adjudicated decision of abuse, neglect or
exploitation to the district court pursuant to the provisions of Section
39-3-1.1 NMSA 1978. The custodian will
enter the employee’s name into the registry within two working days following
receipt of the adjudicated decision. The
custodian shall promptly remove the employee from the registry upon the
authority’s receipt of an order issued by the district court granting a stay
pending the outcome of the appeal, or upon the authority’s receipt of a
district court order reversing the adjudicated decision.
J. Court of appeals: If
the employee seeks review in the court of appeals by writ of certiorari, the
employee shall remain on the registry, unless a stay is granted or the court of
appeals reverses the district court. If
a stay is granted or the court of appeals reverses, notification shall be made
to the custodian who shall promptly remove the employee from the registry.
[8.370.8.14 NMAC - Rp, 8.370.8.14 NMAC xx/xx/2025]
8.370.8.15 NOTIFICATION
BY APS: APS shall promptly
provide all required employee information to the custodian of the final
disposition of complaints of substantiated registry-referred abuse, neglect or
exploitation after the occurrence of each of the following:
A. No
hearing requested: The employee has not requested an
administrative hearing within 30 calendar days after the date of the notice to
the employee following an investigation resulting in the determination of
substantiated registry-referred abuse, neglect, or exploitation.
B. Adjudication of abuse, neglect or
exploitation: The employee has not filed for review in
the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978
after 30 calendar days following the date of the final APS administrative
adjudication decision of employee abuse, neglect or exploitation of sufficient
severity for registry referral.
C. Judicial decision: Upon
the receipt by APS of a district court order or decision sustaining the APS
administrative adjudication decision of abuse, neglect or exploitation of
sufficient severity for registry referral, if an employee seeks judicial review
in the district court.
D. Court of Appeals: If
the employee seeks review in the court of appeals by writ of certiorari, the
employee shall remain on the registry, unless a stay is granted or the court of
appeals reverses the district court. If
a stay is granted or the court of appeals reverses, then notification shall be
made to the custodian who shall promptly remove the employee from the registry.
[8.370.8.15 NMAC - Rp, 8.370.8.15 NMAC xx/xx/2025]
8.370.8.16 ENTRY
ON THE REGISTRY: The custodian shall
provide the employee and the provider for whom the employee worked with notice
of the employee’s listing on the registry.
The following employees will be listed on the registry by the custodian:
A. No hearing requested: Any
employee determined to have committed substantiated registry-referred abuse,
neglect or exploitation who does not request an administrative hearing within
30 calendar days after the date of the notice to the employee.
B. Adjudicated decision: Any
employee who, after 30 calendar days following the date of an adjudicated
decision of abuse, neglect or exploitation, has not filed for review in the
district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
C. Judicial decision: Any
employee for whom a district court has entered an order or decision sustaining
an administrative adjudication of abuse, neglect or exploitation.
D. Court of appeals: Any
employee who seeks review in the court of appeals by writ of certiorari shall
remain listed on the registry, unless a stay is granted pending the outcome of
the case, or the court of appeals reverses the district court. If a stay is granted or the court of appeals
reverses the district court, then the custodian shall promptly remove the
employee from the registry.
[8.370.8.16 NMAC - Rp, 8.370.8.16 NMAC xx/xx/2025]
8.370.8.17 REMOVAL
FROM THE REGISTRY: After a period of
three years from the effective date of placement on the registry, an individual
on the registry may petition for removal from the registry. The petition shall be sent to the custodian. The petition contents shall be reviewed for
completeness within five days, and if not complete, notice shall be sent to the
petitioner informing the petitioner that the petition is incomplete. The petition review time does not commence to run until the submission of a complete petition.
A. Petition contents: Any
individual whose name is on the registry may petition the custodian in writing
for removal of the individual’s name from the registry. In addition to the name, address, telephone
number, and social security number of the petitioner, the petition shall
provide:
(1) the petitioner’s employment history
since placement on the registry, to include for each employer, the name,
address and telephone number of the employer, a brief description of the
petitioner’s responsibilities, the dates of the employment, reasons for ending
the employment, and the names and telephone numbers of any employer contacts;
(2) evidence of any rehabilitation,
restitution or education since the incident of abuse, neglect or exploitation,
including copies of any certificates or other evidence of successful completion
of rehabilitation or other educational programs, and including evidence of
relevant volunteer activities;
(3) other relevant information including
changed circumstances.
B. Review of petition: The
authority shall establish a process of review of the petition. Such process may include review of the
petition by authority or APS employees selected for such reviews and shall
include a requirement that a recommendation be made to the secretary on the
merits of the petition within 20 calendar days from receipt of the completed
petition. The burden at
all times rests upon the petitioner to present truthful information
sufficient to show that good cause exists for removing the petitioner’s name
from the registry.
C. Review considerations: The
review process established by the authority shall consider all relevant factors
to determine if the petitioner has presented truthful information sufficient to
demonstrate that good cause exists for removing the petitioner’s name from the
registry, including but not limited to:
(1) the nature and extent of the
substantiated abuse, neglect or exploitation which resulted in the placement of
the petitioner’s name on the registry including records obtained from the
employee abuse registry program and the custodian of the registry;
(2) the evidence showing the
rehabilitation activities of the petitioner, which may be based in part on
relevant volunteer activities, education and restitution;
(3) the petitioner’s age at the time of
the substantiated abuse, neglect or exploitation, and the length of time since
the substantiated abuse, neglect or exploitation;
(4) the likelihood that the petitioner
will commit future acts of abuse, neglect or exploitation; and,
(5) the existence and extent of false or
misleading statements or information provided by the petitioner in connection
with the petition.
D. Decision on Petition: The
secretary shall issue a final written determination on the petition based upon
the review of the petition within 30 days of receipt of the completed petition
and shall provide the decision to the petitioner in person or by certified
mail. The secretary’s final written
determination shall be delivered or mailed to the petitioner within three
business days of such determination. If
the petition is granted, the petitioner’s name shall be promptly removed from
the registry.
E. Hearings: If the secretary denies
the petition, the petitioner may request an administrative hearing with 10
calendar days of receipt of the decision.
Upon receipt of a request for a hearing, an independent hearing officer
of the authority shall conduct the hearing.
If a petition is denied by the secretary and a hearing is requested and
provided, the individual may not thereafter re-petition for removal from the
registry. If the petition is denied
following a hearing, then the petitioner may seek judicial review pursuant to
the provisions of Section 39-3-1.1 NMSA 1978.
If a petition is denied by the secretary, and an administrative hearing
is not timely requested, then the individual on the registry may petition only
one additional time for removal from the registry after a minimum of 36 months
from the date of the prior petition denial.
[8.370.8.17 NMAC - Rp, 8.370.8.17 NMAC xx/xx/2025]
8.370.8.18 CONFIDENTIALITY: The authority complies with all state and federal
confidentiality requirements regarding information obtained in connection with
the operation of the employee abuse registry program, including the Health
Insurance Portability and Accountability Act of 1996 (HIPAA).
A. Confidentiality of information: Information
obtained by the incident management system involving incidents or situations of
suspected abuse, neglect or exploitation is confidential and is not subject to
public inspection until completion of all investigations and hearings, and then
only to the extent specifically permitted by law and only such information that
does not identify individuals who are receiving care or services from
providers.
B. Unsubstantiated complaints: Complaints
of suspected abuse, neglect or exploitation obtained by the incident management
system that are not substantiated following investigation are not public
information and are not subject to public inspection.
C. Substantiated complaints: Complaints
of suspected abuse, neglect or exploitation obtained by the incident management
system that are substantiated following investigation are subject to public
inspection only to the extent permitted by law and the disclosure may not
include any identifying information about an individual who is receiving health
care services from a provider.
D. Permitted disclosures: Nothing
herein shall restrict an appropriate disclosure of information to the centers
for medicare and medicaid
services; nor shall any provision herein restrict disclosures to law
enforcement officials, including district attorneys and courts, in accordance
with the Adult Protective Services Act and the Resident Abuse and Neglect Act
or other law.
[8.370.8.18 NMAC - Rp, 8.370.8.18 NMAC xx/xx/2025]
History of 8.370.8
NMAC: [RESERVED]
History of Repealed Material: 8.370.8 NMAC, Employee
Abuse Registry filed xx/xx/2024 Repealed effective xx/xx/2025.
Other: 8.370.8 NMAC,
Employee Abuse Registry filed xx/xx/2024 Replaced by 8.370.8 NMAC, Employee
Abuse Registry effective xx/xx/2025.