Current through Register Vol. 35, No. 18, September 24, 2024
A.
Request for facilitated conference: The DRP is initiated by a request for a
facilitated conference by any of the parties identified in Section 7 in the
capacities specified in that section. The request must be directed to the
Jackson coordinator or dispute resolution process coordinator
and must be received by the coordinator no later than 30 days after the mailing
of the completed plan. The request may be made by telephone, in person, or in
writing and shall identify any disputed portions of the plan. The coordinator
shall record the date of receipt of the request and shall notify the members of
the team and the parties of the substance of the dispute. If the request
involves an allegation of substantial failure to implement the plan, the
request shall be received by the coordinator no later than 30 days after the
special team meeting held to address that implementation issue, as provided in
Subsection K of 8.371.8.11 NMAC, above. In the event the case manager does not
convene the team meeting as requested, or within the time allotted, the DRP
must be initiated within 30 days of the request to reconvene the
team.
B. Informal resolution: The
coordinator shall promptly communicate with the parties and with appropriate
team members to determine whether there is a genuine dispute and whether the
dispute can be resolved informally without a facilitated conference. If it
appears that the dispute can be resolved informally, the coordinator shall
attempt to do so. If the dispute is resolved, the coordinator shall notify the
members of the team and the parties in writing.
C. Facilitated conference: If the dispute is
not resolved informally, the coordinator shall schedule a facilitated
conference. The conference shall occur and the resolution or determination
shall be distributed within 45 days of receipt of the request for the
facilitated conference. The parties shall be notified of the time and location
of the conference at least 10 days prior to the conference. The coordinator may
request the attendance of team members, professionals, authority personnel or
other persons whose presence the coordinator believes could assist in resolving
the disputed portions of the plan.
(1) The
purpose of the facilitated conference is to resolve the dispute to the extent
possible and to agree on any material facts. If the conference participants are
unable to resolve the dispute issues to the satisfaction of the party who
requested the facilitated conference, the coordinator shall make determinations
regarding the disputed issues as follows:
(a)
determine that the objection(s) to portion(s) of the plan has merit and either:
(i) amend the plan, accordingly; or
(ii) remand the plan to the team for revision
consistent with the coordinator's determination; or
(b) determine that the objection(s) to
portions of the plan lacks merit and deny the objection(s); or
(c) determine that implementation of the plan
is in substantial compliance with the plan and direct that implementation
continue; or
(d) determine that
implementation of the plan is not in substantial compliance with the plan and
direct that the plan be implemented appropriately.
(2) The coordinator shall reduce the
determination to writing and mail or deliver it to all conference participants
and non-participating team members. The written determination shall include the
reasons for the determination and recite any amendments to the plan and any
agreements as to material facts.
D. Administrative hearing:
(1) Request for hearing: If the party who
requested a facilitated conference is dissatisfied with the coordinator's
determination, that party may request an administrative hearing to review the
determination. If the original dispute issue involved an allegation of a
substantial failure to implement and the party making the original request
believes that there continues to be a substantial failure to implement, that
party may request an administrative hearing. Other parties may request an
administrative hearing to review the coordinator's determination only if they
participated in the facilitated conference and the coordinator's determination
resulted in a change in the contents or implementation schedule of the plan.
The request must be made to the developmental disabilities division, Attention:
Jackson coordinator within 15 days of the date of the
coordinator's written determination.
(2) Grounds for hearing: In order for a
request to be heard, the party making the request must allege in its request
for a hearing that a plan fails to meet at least one of the guidelines set
forth in Paragraphs (7) and (8) of Subsection D of 8.371.8.12 NMAC, as
appropriate. The grounds for requesting an administrative hearing are set forth
in Paragraphs (7) and (8) of Subsection D of 8.371.8.12 NMAC, below.
(3) Notice of hearing: The division shall
provide written notice of the hearing, the issues raised in the request for
hearing and the name of the hearing officer to the parties at least 20 days
before the hearing date.
(4)
Recusal of hearing officer: If any of the parties has reason to believe that
the hearing officer assigned to hear a dispute cannot render a fair and
impartial decision, that party shall notify the developmental disabilities
division, attention Jackson coordinator, of its challenge and
the reasons therefore, no later than 10 days from the date of the notice of
hearing. If the coordinator determines that there is good cause to recuse the
assigned hearing officer, the coordinator shall select another hearing officer
within seven days of the date the division received the challenge.
(5) Conduct of hearing:
(a) The authority shall make any team members
who are the authority's employees available to testify at a hearing.
(b) The Jackson transition
representative or another team member will introduce the plan and the
coordinator's determination into evidence.
(c) If the contents of a plan are in dispute
and the authority is not the objecting party, the authority will go forward to
present evidence in support of the plan. If the authority is objecting to the
contents of a plan, the party or parties who support the plan will go forward
to present evidence in support of the plan.
(d) The party objecting to the contents of
the plan will have the burden to prove that the objection has merit and that
the plan should be amended in accordance with the objecting party's
request.
(e) If a party is alleging
that a plan includes a service(s) that is not being provided, that party has
the burden to prove that:
(i) The service(s)
is not being provided; and
(ii)
Such lack of service(s) is a substantial failure to implement the
plan.
(6)
Evidence:
(a) The hearing officer shall admit
all relevant and material evidence, including agreements as to material facts
as determined by the Coordinator, that is reasonably likely to assist in the
making of a fully informed, fair decision in the dispute. The hearing officer's
rulings on evidence are not reviewable. Conformity to legal rules of evidence
shall not be necessary.
(b) In all
cases the burden of proof shall be established by a preponderance of the
evidence.
(7) Guidelines
for decisions regarding ITPs and community ISPs: In arriving at a decision, the
hearing officer shall utilize the following guidelines in resolving disputed
portions of the ITP and community ISP:
(a) The
contents of the plan are reasonable and appropriate to meet the individual's
needs and promote identified strengths and capacities.
(b) The ITP/ISP reflects the individual's
preferences, to the extent appropriate, unless the individual communicates no
preference or is incapable of communicating any preference.
(c) The ITP/ISP is designed to utilize
services that allow the individual to be more, rather than less, integrated in
the community and rely on available generic services to the extent feasible and
consistent with the individual's needs.
(d) The ITP/ISP provides services which are
least restrictive, not unduly intrusive and not excessive in light of the
individual's needs.
(e) The ITP/ISP
can be practicably implemented. Except as provided in Subsection E of
8.371.8.12 NMAC, below, practicality or impracticality is to be determined
without regard to cost.
(f) The
plan includes a service or support that is not being provided and the failure
to provide such service is a substantial failure to implement the
plan.
(8) Guidelines for
decisions regarding facility IPPs:
(a) The
contents of the IPP are based on professional judgment and are reasonable and
appropriate to meet the individual's needs and promote identified strengths and
capacities.
(b) The IPP reflects
the individual's preferences, to the extent appropriate, unless the individual
communicates no preference or is incapable of communicating any
preference.
(c) The IDT considered
residential placement, supports, programs, services and activities that would
give the individual the opportunity to be more, rather than less, integrated in
the community. The IDT's decision to recommend or not to recommend discharge
was based upon a consideration of the individual's needs and is consistent with
appropriate professional judgment.
(d) The IPP provides services which are least
restrictive, not unduly intrusive and not excessive in light of the
individual's needs.
(e) The IPP can
be practicably implemented. Except as provided in Subsection E of 8.371.8.12
NMAC, below, practicality or impracticality is to be determined without regard
to cost.
(f) The plan includes a
service or support that is not being provided and the failure to provide such
service is a substantial failure to implement the plan.
(9) Decision:
(a) The hearing shall be conducted, and the
hearing officer shall render a decision, within 30 days of the
Jackson coordinator's receipt of the hearing request, or
within 30 days of the selection of a new hearing officer if the recusal
provisions of Paragraph (4) of Subsection D of 8.371.8.12 NMAC have been
invoked. All hearing officer decisions shall contain the following:
(i) The decision on the merits of the
dispute; and
(ii) The reasons for
the decision, including reference to any guidelines listed in Paragraphs (7)
and (8) of Subsection D of 8.371.8.12 NMAC, as appropriate.
(b) The decision of the hearing
officer shall be final as to the plan's compliance with the guidelines set
forth in Paragraphs (7) and (8) of Subsection D of 8.371.8.12 NMAC, as
appropriate, of this DRP.
(c) Any
challenge in court to any individual plans or the implementation thereof must
be by separate
de novo action or by a
de novo
motion in the
Jackson case, where appropriate. In any such
challenge the DRP and guidelines set forth in Paragraphs (7) and (8) of
Subsection D of 8.371.8.12 NMAC, and in Activity 11 of the individual
transition planning process (8.371.7 NMAC) shall not be enforced by the court.
(i) The sole basis for any court challenge to
any individualized plan or the implementation thereof shall be that the plan on
its face or as implemented does not comply with the individual's rights under
constitutional or statutory law. Nothing herein shall be deemed a waiver of any
of the state's defenses in the event of such action.
(ii) Statements and evidence presented to the
coordinator, the decision of the coordinator, the decision of the hearing
officer and the record of any hearing shall not be offered as evidence nor be
admissible in any proceeding in court.
(10) Notice of decision: The
Jackson coordinator shall mail the hearing officer's decision
to the parties within three working daysof receipt of the decision.
E. Review of interim plans:
(1) If the authority does not implement an
ITP because of cost or because the plan fails to satisfy constitutional or
statutory requirements and develops an interim plan instead,
any party eligible to initiate a DRP of the original plan may initiate a DRP of
the interim plan. However, the authority's decision regarding the allocation of
resources to any plan or interim plan is final, within the authoritys's sole
discretion and not reviewable in the DRP. DRP hearing officers have no
authority to order the authority to expend resources beyond those the authority
allocates to any plan or interim plan.
(2) All DRP procedures and limitations,
including but not limited to those set forth in Subparagraphs (b) and (c) of
Paragraph (9) of Subsection D of 8.371.8.12 NMAC, will apply except that if the
matter goes to a hearing:
(a) The hearing
officer cannot be the person who held the hearing on the original plan,
and
(b) The grounds for review and
the hearing guidelines are modified and limited to whether the interim plan
satisfies the guidelines set forth in Paragraph (8) of Subsection D of
8.371.8.12 NMAC, above, as appropriate, to the extent possible within the
resources allocated by the authority to the individual to implement the interim
plan.
F.
Delays in implementing plans:
(1) Delay of
transition process:
(a) During any stage of
the DRP, a party may request that some or all ITP implementation activities be
delayed pending resolution of the dispute. A request to delay prior to the
administrative hearing must be directed to the Jackson
coordinator. A party may also request a delay in implementation from the
hearing officer at the administrative hearing.
(b) The
Jackson coordinator
or the hearing officer shall order that some or all ITP implementation
activities be delayed pending resolution of the dispute if the coordinator or
hearing officer determines that:
(i) there are
extraordinary circumstances which necessitate delay; or
(ii) the immediate implementation of the ITP
would adversely affect the health or safety of the individual.
(c) Delays in implementation
pending resolution of a dispute shall be terminated automatically when a
dispute is resolved by withdrawal of the dispute, agreement of the parties,
failure to request an administrative hearing, or upon the determination by the
hearing officer.
(2)
Delay of facility or community plans:
(a) The
request to initiate a DRP regarding any portion of an IPP or ISP shall
automatically delay implementation of the disputed portions unless the health
or safety of the individual would be adversely affected.
(b) Delays in implementation pending
resolution of a dispute shall be terminated automatically when a dispute is
resolved by withdrawal of the dispute, agreement of the parties, failure to
request an administrative hearing, or upon the determination.