This
rule was filed as 7 NMAC 26.3.
TITLE
7 HEALTH
CHAPTER
26 DEVELOPMENTAL DISABILITIES
PART
3 RIGHTS OF INDIVIDUALS WITH
DEVELOPMENTAL DISABILITIES LIVING IN THE
COMMUNITY
7.26.3.1 ISSUING AGENCY: Department of Health, Developmental
Disabilities Division, 1190 Saint Francis Drive, Post Office Box 26110, Santa
Fe, New Mexico 87502-6110, Telephone No. (505)827-2574
[09/07/94;
01/15/97; Recompiled 10/31/01]
7.26.3.2 SCOPE:
A. This
regulation applies only to clients and service providers as defined below.
B. This
regulation is not available to resolve disputes concerning the content of or
the substantial failure to implement a community individual service plan. Any dispute concerning the content of a plan
or any claim alleging substantial failure to implement a plan must be raised in
the dispute resolution process, if available.
This regulation is not available to review any action by a service
provider or the department to suspend, terminate or reduce medicaid covered
services if a fair hearing procedure is available pursuant to federal law.
C. Nothing
in this regulation alters or modifies the duty of any person having reason to
believe that a person is being abused, neglected, or exploited to report that
information as required by the Adult Protective Services Act, Section 27-7-30
NMSA 1978 (1992 Repl.) and the Abuse and Neglect Act, Section 32A-4-3 NMSA 1978
(1993 Repl.).
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.3 STATUTORY AUTHORITY: NMSA 1978, Section 9-7-6.
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.4 DURATION: Permanent.
[01/15/97;
Recompiled 10/31/01]
7.26.3.5 EFFECTIVE DATE: January 15, 1997, unless a later date is
cited at the end of a Section or Paragraph.
[09/12/94;
01/15/97; Recompiled 10/31/01]
[Compiler’s
note: The words or paragraph, above, are no longer applicable. Later dates are now cited only at the end of
sections, in the history notes appearing in brackets.]
7.26.3.6 OBJECTIVE:
A. These
regulations set out rights that the department expects all providers of services
to individuals with developmental disabilities to respect. These regulations are intended to complement
the department's Client Complaint Procedures (7 NMAC 26.4) [now 7.26.4 NMAC].
B. These
regulations are promulgated, in part, to satisfy requirements arising from the
implementation of the decision in the Jackson v. Fort Stanton, N.M.
Dist. Ct. No. Civ. 87-839, including agreements reached by the parties. These regulations are promulgated to further
the goals of the Developmental Disabilities Act, Sections 28-16A-1 through
28-16A-18 NMSA 1978.
C. Notice
of public hearing on the proposed regulations was given in accordance with
Section 9-7-6 NMSA 1978. On June 23,
1994, a public hearing was held in Santa Fe, New Mexico. Both written and oral testimony was accepted
from all persons who desired to testify.
The department's hearing officer submitted his recommendations on August
25, 1994.
D. These
regulations do not incorporate all the recommendations made by the hearing
officer. I have today prepared a
decision which is part of the record that explains the reasons for the
department's deviation from recommendations made by the hearing officer.
E. The
purpose of this regulation is to promote the health, safety and welfare of
individuals who are receiving supports and services for persons with
developmental disabilities from service providers certified by, or funded in
whole or in part with state funds administered by the department through
contracts or agreements. This
regulation defines rights of persons with developmental disabilities so that
these rights can be readily identified, exercised and protected and provides
that the department will enforce remedies for substantiated complaints of
violation of the client's right as provided in the client complaint procedure.
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.7 DEFINITIONS:
A. “Aversive
procedures” means those prohibited procedures, including, but not limited to,
taste and odor aversives, excessive deprivation or stimulation of basic sensory
experiences, any device or intervention intended to cause pain or unpleasant
sensations, electric shock, isolation, mechanical restraint, forced exercise,
withholding of food, water or sleep, inappropriate clothing, humiliation and
water mist, as defined in the division’s behavioral support policy.
B. “Client”
means a person with developmental disabilities who is receiving supports and
services for individuals with developmental disabilities by a service provider
certified by, or funded in whole or in part with state funds administered by
the department through contracts or agreements.
C. “Complainant”
means a client or his or her legal guardian who files a complaint pursuant to
this regulation.
D. “Chemical
restraint” means the use of medication, including psychoactive medication, as
punishment, as a substitute for a habilitation or in quantities that interfere
with services or habilitation, for the convenience of staff, or for
unreasonable [sic] restricting a client's freedom of movement, other than in an
emergency where there is a substantial and imminent risk of serious physical
harm to the client or others.
E. “Days”
means calendar days.
F. “Department”
means the department of health.
G. “Developmental
disabilities” means a severe chronic disability of a person that:
(1) is attributable to a mental or physical
impairment, including the result from trauma to the brain, or a combination of
mental and physical impairments;
(2) is manifest before the person reaches the
age twenty-two years;
(3) is expected to continue indefinitely;
(4) results in substantial functional
limitations in three or more of the following areas of major life activity:
(a)
self-care;
(b) receptive and expressive language;
(c) learning;
(d) mobility;
(e) self-direction;
(f) capacity for independent living; and
(g) economic self-sufficiency; and
(5) reflects the person's need for a
combination and sequence of special, interdisciplinary or generic care,
treatment or other services that are of life-long or extended duration and are
individually planned and coordinated.
H. “Director”
means the director, developmental disabilities division or his or her
designate.
I. “Division”
means the developmental disabilities division of the department.
J. “Emergency”
means a circumstance in which the health or safety of the client or another
person is in imminent risk of harm and immediate action is necessary to prevent
the harm.
K. “Emotional
or psychological abuse” means use of verbal or other communication to threaten
a client with physical harm or to ridicule, curse, humiliate, degrade or
antagonize a client, or any similar action
L. “Exploitation
of a client's personal property” means intentionally, knowingly or recklessly
using a client's person or property for another person's profit, advantage, or
benefit without legal right or authority.
Exploitation includes failure to compensate a client for services or
work for which he or she is entitled to compensation.
M. “Facilities”
means institutions operated by the department.
N. “Guardian”
means the parent of an individual with developmental disabilities if the client
is a minor or a legal guardian appointed or recognized pursuant to the Uniform
Probate Code, Section 45-5-101, et seq. NMSA 1978 (1993 Repl.).
O. “Mechanical
restraint” means any apparatus that restricts a client's movement excluding
mechanical supports designed by a physical therapist and approved by a
physician or designed by an occupational therapist that is used to achieve
proper body position and excluding protective devices.
P. “Medical
restraint” means any apparatus prescribed by a physician, dentist or medical
practitioner acting within the scope of his or her license, as health-related
protection that restricts a client's movement during the conduct of a specific
medical or surgical procedure.
Q. “Neglect”
means, subject to the client's right to refuse treatment and subject to medical
personnel's right to exercise sound medical discretion:
(1) the failure to provide any treatment,
services, care, medication or item that is necessary to maintain the health and
safety of a client;
(2) the failure to take reasonable precaution
that is necessary to prevent damage to the health and safety of a client; or
(3) the failure to carry out a duty to
supervise properly or control the provision of any treatment, care, goods,
services, or medication necessary to maintain the health or safety of a client.
R. “Office”
means the office of quality assurance or a regional office within the
developmental disabilities division.
S. “Plan”
means the individual service plan for services, treatment or habilitation
developed by the interdisciplinary team.
T. “Physical
abuse” means any act, or failure to act, performed knowingly, intentionally or
recklessly that causes or is likely to cause harm. Physical abuse includes, but is not limited to, physically
striking or assaulting a client, hitting, slapping, pinching, kicking, pushing,
dragging, shaking, squeezing, choking and shoving. Physical contact which endangers the safety of a client as well as
handling the client with more force than is necessary also constitute physical
abuse.
U. “Physical
restraint” means the use of manual methods to restrict the movement or normal
functioning of a portion of an individual's body other than physical guidance
and prompting techniques of brief duration.
V. “Protective
devices” means helmets, safety goggles or glasses, guards, mitts, gloves, pads
and other common safety devices that are normally used or recommended for use
by persons without disabilities while engaged in a sport, occupation, or during
transportation.
W. “Service
provider” means a private entity that has entered into a contract or provider
agreement with the department or that is certified by the department for the
purpose of providing supports and services to individuals with developmental
disabilities. When the context
requires, the service provider means the executive director or administrator
having authority to bind the service provider.
Service provider does not include facilities operated by the department.
X. “Sexual
abuse” means sexual activity between a client and staff, nonconsensual sexual
activity or contact with others without regard to injury, and sexual
exploitation. Sexual activity includes,
but is not limited to kissing, hugging, stroking or fondling with sexual intent;
oral sex or sexual intercourse; and request or suggestion or encouragement by
staff for performance of sex with the employee or another. Sexual intent is to be determined by an
examination of all the circumstances related to the incident. Sexual exploitation includes sexual
exploitation as defined in the Abuse and Neglect Act, Section 32A-4-2(F) and
allowing, permitting or encouraging obscene or pornographic filming or
photographing of an adult client without his or her consent for commercial or noncommercial
purposes.
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.8 REGULATION DOES NOT CREATE AN
ENTITLEMENT TO SERVICES: Nothing in this
regulation shall provide an entitlement to programs, supports, services or
benefits that does not otherwise exist pursuant to other law or regulation.
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.9 REGULATION DOES NOT CREATE A
CAUSE OF ACTION: Any rights or remedies provided pursuant to
this regulation that do not otherwise exist pursuant to other law or regulation
are enforceable only through the client complaint procedure and are not
enforceable in court. Nothing in this
regulation shall create a right of judicial review of the administrative
decision of the director or the secretary or his or her designee made pursuant
to the client complaint procedure.
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.10 CLIENT RIGHTS: Unless expressly modified by court order or
specifically granted to a guardian or conservator, all clients have:
A. the
same legal rights guaranteed to all other individuals under the United States
Constitution, New Mexico State Constitution, and federal and state laws;
B. the
right to be free from unlawful discrimination on the basis of race, age,
religion, color, national origin, ancestry, sex, sexual preference, physical or
mental handicap or medical condition;
C. the
right to be free from emotional or psychological abuse, physical abuse, sexual
abuse, neglect and exploitation of his or her personal property;
D. the
right to practice the religion of his or her choice or to abstain from the
practice of religion;
E. the
right to safe working conditions, hours of labor and wages for labor consistent
with the Fair Labor Standards Act and other applicable federal and state laws,
and worker's compensation, except that clients receiving residential services
may be required to do normal housekeeping and home maintenance chores. Clients shall not be required to perform
labor involving the essential operation of the service provider, including the
care and treatment of other clients.
Clients may volunteer to do labor, consistent with federal and state
labor laws. If a client volunteers to
do work for which the program would otherwise be required to pay non-clients,
the client shall be paid a commensurate wage;
F. the
right to consent to or refuse medical treatment, medical services, and other
forms of habilitation services or supports, consistent with the ISP regulations
and the duties of a parent, guardian or treatment guardian pursuant to the
requirements of the Children's Mental Health and Developmental Disabilities
Act, Section 32A-6-14 NMSA 1978 (1993 Repl.) or the Mental Health and
Developmental Disabilities Act, Section 43-1-15 NMSA 1978 (1993 Repl.);
G. the
right to have privacy, including both periods of privacy and places of privacy;
H. the
right to communicate freely with persons of his or her choice in any reasonable
manner and at any reasonable time he or she chooses;
I. the
right to own, use and control real property and personal possessions;
J. the
right to engage in social interaction with members of either sex;
K. the
right to enter into contract, including the contract to marry;
L. the
right to engage in consensual sexual activity, except sexual activity defined
as sexual abuse;
M. the
right to procreate and to parent or not to procreate;
N. the
right to manage his or her financial affairs, unless the client has a court
appointed guardian or conservator or access to his or her funds is restricted
by the individual service plan. A
service provider who manages the funds of a client pursuant to the client's
individual service plan shall comply with applicable federal standards or
regulations and the following requirements:
(1) the service
provider shall have obtained informed consent and written authorization from
the client or the guardian or conservator, which shall state the service
provider's responsibilities;
(2) the service provider shall maintain a
written record of all financial transactions involving the funds of the client
and shall make the record available to the client and the guardian or
conservator upon request;
(3) the service provider shall provide for
the safekeeping of the funds, shall keep the funds separate from all other
funds and shall be held strictly accountable for the funds and any interest;;
(4) the service provider shall return the
funds to the client or guardian or conservator, including interest, upon
request. Upon the death of a client,
the service provider shall provide the executor or personal representative a
complete accounting of all funds and property;
O. the
right to participate in the political process, including the right to vote;
P. the
right to have access to his or her records, except as expressly limited by
statute, and to have confidential treatment of all information in his or her
records, including personal and medical records. Confidentiality does not preclude access to an individual's
records by an individual or organization otherwise entitled under federal or
state law to review records;
Q. the
right to voice grievances and complaints and to recommend changes in service
provider policies and services without restraint, interference, coercion,
discrimination or reprisal;
R. the
right to have access to available advocacy services, including consultation and
assistance on the individual's concerns and training on legal rights;
S. the
right to refuse to participate in medical or psychological research
experimentation;
T. the
right to be free from excessive use of medical restraint;
U. the
right to be free from the use of chemical restraint;
V. the
right to be free from the use of physical restraint except in an emergency;
W. the
right to be free from limitations on freedom of movement except in an
emergency;
X. the
right to be free from the use of mechanical restraint; and
Y the
right to be free from the use of aversive procedures.
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.11 RESTRICTIONS OR LIMITATION OF
CLIENT'S RIGHTS:
A. A
service provider shall not restrict or limit a client's rights except:
(1) where the restriction or limitation is
allowed in an emergency and is necessary to prevent imminent risk of physical
harm to the client or another person; or
(2) where the interdisciplinary team has
determined that the client's limited capacity to exercise the right threatens
his or her physical safety; or
(3) as provided for in Section 10.1.14 [now
Subsection N of 7.26.3.10 NMAC].
B. Any
emergency intervention to prevent physical harm shall be reasonable to prevent
harm, shall be the least restrictive intervention necessary to meet the
emergency, shall be allowed no longer than necessary and shall be subject to
interdisciplinary team (IDT) review.
The IDT upon completion of its review may refer its findings to the
office of quality assurance. The
emergency intervention may be subject to review by the service provider’s
behavioral support committee or human rights committee in accordance with the
behavioral support policies or other department regulation or policy.
C. The
service provider may adopt reasonable program policies of general applicability
to clients served by that service provider that do not violate client rights.
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.12 RETALIATION FOR INITIATION OF
COMPLAINT PROCEDURE PROHIBITED: A client
has the right to present or make known a complaint without restraint,
interference or coercion. A service
provider shall not retaliate or discriminate against a client, staff person or
other person who complains to the service provider or initiates a complaint
procedure.
[09/12/94;
01/15/97; Recompiled 10/31/01]
7.26.3.13 CLIENT COMPLAINT PROCEDURE
AVAILABLE: A complainant may initiate a complaint as
provided in the client complaint procedure to resolve complaints alleging that
a service provider has violated a client's rights as described in Section 10
[now 7.26.3.10 NMAC]. The department
will enforce remedies for substantiated complaints of violation of a client's
rights as provided in client complaint procedure.
[09/12/94;
01/15/97; Recompiled 10/31/01]
HISTORY
OF 7.26.3 NMAC:
Pre-NMAC
History: The material in this part was
derived from that previously filed with the State Records Center:
DOH
94-05 (DDD), Regulations Governing Client Rights For Individuals With
Developmental Disabilities Living In The Community, 9/12/94.
History
of Repealed Material: [RESERVED]