New Mexico Administrative Code
Title 8 - SOCIAL SERVICES
Chapter 371 - DEVELOPMENTAL DISABILITIES
Part 8 - (APPENDIX B) DISPUTE RESOLUTION PROCESS
Section 8.371.8.12 - THE PROCESS

Universal Citation: 8 NM Admin Code 8.371.8.12

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.

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