Current through Register Vol. 35, No. 18, September 24, 2024
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.