This rule was filed as 7 NMAC 26.6.
TITLE 7 HEALTH
CHAPTER 26 DEVELOPMENTAL
DISABILITIES
PART 6 REQUIREMENTS
FOR DEVELOPMENTAL DISABILITIES COMMUNITY
PROGRAMS
7.26.6.1 ISSUING AGENCY: Department of Health; Developmental Disabilities Division, 1190 Saint Francis Drive, Post Office 26110, Santa Fe, New Mexico 87502-6110, Telephone No. (505) 827-2574.
[12/05/86, 12/30/86, 7/14/89; 01/15/97; Recompiled 10/31/01]
7.26.6.2 SCOPE: These regulations apply to all community agencies who have entered into contracts and/or medicaid provider agreements with the health department, developmental disabilities division, to provide services to persons with developmental disabilities.
[12/05/86, 12/30/86, 7/14/89; 01/15/97; Recompiled 10/31/01]
7.26.6.3 STATUTORY AUTHORITY: Section 28-16-7 and 28-16-8, NMSA 1978, (the Developmental Disabilities Community Services Act) and in Section 9-7-6.F, NMSA 1978 (the Health and Environment Department Act).
[12/05/86, 12/30/86, 7/14/89; 01/15/97; Recompiled 10/31/01]
7.26.6.4 DURATION: Permanent.
[12/05/86, 12/30/86, 7/14/89; 01/15/97; Recompiled 10/31/01]
7.26.6.5 EFFECTIVE DATE: January 15, 1997, unless a later date is cited at the end of a Section or Paragraph.
[12/05/86, 12/30/86, 7/14/89; 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[Compiler’s note: The words or paragraph, above, are no longer applicable.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.]
7.26.6.6 OBJECTIVE:
A. These
regulations are being promulgated to promote and assure the provision of quality
services to persons with developmental disabilities residing in community
agencies.
B. These
regulations are being promulgated as part of a quality assurance initiative
requiring all community agencies providing services to persons with
developmental disabilities and contracting with the developmental disabilities
division to be accredited by the commission on accreditation of rehabilitation
facilities (CARF).
C. This regulation repeals and supersedes HED Regulations 86-11 (BHSD) and 86-12 (BHSD) and HED 89 - 4 (BHSD).
[12/05/86, 12/30/86, 7/14/89; 01/15/97; Recompiled 10/31/01]
7.26.6.7 DEFINITIONS:
A. “Adult”
means an individual who has attained the age of eighteen (18) years.
B. “Community
agency” means any nonprofit or for profit corporation, tribal organization,
unit of local government, or other organization which has entered into a
contract with the department for the purpose of providing developmental
disabilities services.
C. “Community
living setting” refers, for the purpose of these regulations, to a community
living situation supervised by a community agency, which: 1) provides living
arrangements for persons with a developmental disability; and 2) is located in
the community. Such facilities may
include licensed group homes, foster homes, family living situations, supported
living situations, companion homes, semi-independent living and assisted living
residences and/or similar residences or innovative residential settings. When personal care and respite services are
the sole services provided to the individual, these services are not included
under the definition for “community living setting” as long as they are
provided in the individual’s or family’s personal home which is not under the
direct auspices or control of the community agency.
D. “Consent
screening instrument” means the instruments or procedures for determining an
adult’s ability to give informed consent to a residential placement as the
department will designate.
E. “Court”
means a New Mexico state district court.
F. “Department”
means the New Mexico department of health.
G. “Developmental
disability” means a severe chronic disability of a person which is attributable
to a mental or physical impairment, including the result of trauma to the
brain, or combination of mental and physical impairments; is manifested before
the person attains age twenty-two; is likely to continue indefinitely; results
in substantial functional limitations in three or more of the following areas
of major life activity:
(1) self-care;
(2) receptive or expressive language;
(3) learning;
(4) mobility;
(5) self-direction;
(6) capacity for independent living;
(7) economic self-sufficiency; and
(8) 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 which are
individually planned and coordinated.
H. “Developmental
delay” is defined as a discrepancy between chronological age, after correction
for prematurity, and developmental age in one or more of the following areas of
development: cognitive, communication, physical/motor (including vision and
hearing), social/emotional, and/or adaptive.
(1) Eligibility: To be eligible for services,
a child must demonstrate 25 percent or more discrepancy between chronological
age, after correction for prematurity, and developmental age. The extent of the child’s delay must be
documented. A determination of
developmental delay shall not be based upon behavior related to cultural or
language differences.
(2) Determination of developmental status:
The determination of developmental status of the child in each of the
developmental areas must be established through an interdisciplinary evaluation
process which meets the criteria defined in Section 301 of “Policies,
Procedures and Guidelines for the Family, Infant, Toddler Program (FIT)”. The procedures may include informed clinical
opinion, norm-referenced/standardized measures, criterion-referenced/curriculum-based
instruments, behavior checklists and adaptive behavior measures.
I. “Established
condition” is defined as a diagnosed physical, mental or neurobiological
condition which has a high probability of resulting in developmental
delay. A delay in development may or
may not be exhibited at the time of the diagnosis. Examples of an “established condition” include, but are not
limited to: down’s syndrome, and other
chromosomal abnormalities associated with delays in development; congenital and postnatal conditions
associated with delays in developmental, such as sensory impairments (including
vision and hearing), inborn errors of metabolism, myelomeningocele, cerebral
palsy, fetal alcohol syndrome, non-febrile seizures, malignancy of the brain or
spinal cord, acquired immune deficiency syndrome (AIDS), hydrocephaly, and
infections such as cytomegalovirus (CMV), herpes or encephalitis; neurobiological conditions such as autism or
other pervasive developmental disorders.
(1) Eligibility: The determination of the
presence of an established condition is identified by a physician or other
primary health care provider. The
diagnosis of the condition(s) establishes eligibility.
(2) Determination of developmental status:
The determination of developmental status of the child in each of the
developmental areas must be established through an interdisciplinary evaluation
process which meets the criteria defined in Section 301 of “Policies,
Procedures and Guidelines for the Family, Infant, Toddler Program (FIT)”.
J. A
“Biological or medical risk for developmental delay” is the presence of early
medical conditions which are known to produce developmental delays in some
children. Examples of “biological or
medical risk” include, but are not limited to, the following medical
conditions: pre-term birth of less than 32 weeks gestation; very low birth
weight (less than 1500 grams or 3 pounds, 4 ounces); periventricular
intraventricular hemorrhage (PIVH); periventricular leukomalacia (PVL); hypoxic
ischemic encephalopathy (birth asphyxia); chronic lung disease (CLD) of
prematurity or bronchopulmonary dysplasia (BPD); prenatal exposure to drugs or
medications or other teratogens known to be associated with developmental
delays; failure to thrive; chronic otitis media.
(1) Eligibility: The determination of the
presence of biological/medical risk condition(s) is identified by a physician
or other primary health care provider (PHCP).
The diagnosis of the condition(s) establishes eligibility.
(2) Determination of developmental status:
The determination of developmental status of the child in each of the
developmental areas must be established through an interdisciplinary evaluation
process which meets the criteria defined in Section 301 of “Policies,
Procedures and Guidelines for the Family, Infant, Toddler Program (FIT)”.
K. An
“Environmental risk for developmental delay” is the presence of physical,
social and/or economic factors in the environment which pose a substantial
threat to development. Examples of
“environmental risk” are usually a combination of more than one factor which
may include, but are not limited to: Parental developmental disabilities or
psychiatric disorders; parental substance abuse; child abuse or neglect;
homelessness; exposure to domestic or other episodes of violence.
(1) Eligibility: The determination of the
presence of eligible environmental risk factors must be established by a
multi-agency team.
(2)
Determination of developmental status: The determination of
developmental status of the child in each of the developmental areas must be
established through an interdisciplinary evaluation process which meets the
criteria defined in Section 301 of “Policies, Procedures and Guidelines for the
Family, Infant, Toddler Program (FIT)”.
L. “Guardian”
means for purposes of these regulations a guardian, limited guardian or
guardian ad litem as defined in Section 45-1-201 NMSA 1978 or as may be subsequently
amended.
M. “Person” or “person served” means individuals with “developmental disabilities”, “developmental delay”, “established condition” or “at risk for developmental delay (biological/medical risk and/or environmental risk)” as defined within these regulations, currently receiving or waiting to receive services.
[12/05/86, 12/30/86, 7/14/89, 01/15/97; Recompiled 10/31/01]
7.26.6.8 ELIGIBILITY
FOR SERVICES:
A. Community
agencies shall establish clearly written criteria for eligibility which
correspond with the definitions of “developmental disability”, “developmental
delay” and “at risk for developmental delay” as defined within these
regulations:
B. Community agencies shall have written procedures for notifying the person(s) served of their eligibility status.
[12/05/86, 12/30/86, 7/14/89, 01/15/97; Recompiled 10/31/01]
7.26.6.9 CONSENT
SCREENING FOR PERSONS ENTERING COMMUNITY LIVING FACILITIES:
A. Prior
to admission into a community living setting, community agencies shall convene
an interdisciplinary team (IDT) to determine if the person served has the
ability to consent to a residential placement or is likely to need consent
screening. This determination and its
justification is to be documented in writing.
If the IDT determines:
(1) that the person served does not need
consent screening, then the person served should at this point be given the
option to accept or reject the community agency’s services.
(2) that the person served needs consent
screening, the ability to consent should then be determined using the consent
screening instrument.
B. The
community living setting will have a written review process that provides an
expedient means to re-evaluate the person’s ability to give consent. The process shall describe steps in the
procedure and timelines governing the procedure.
C. If
the person served is found able to give consent then they should have the
option to accept or reject the community agency’s services.
D. At
any time the person served or guardian believes the person served has the
ability to give consent, they can have their consent status reviewed and
request a new consent screening.
E. The
need for consent screening should be reviewed by the IDT at least once a year.
(1) If the person served did not pass the
consent screening at the time of the initial admission, then the consent
screening must be administered within one year and annually thereafter.
(2) If the
person served was able to give consent, the IDT will be required to review the
need to administer the consent screening instrument when it has reasonable
grounds for believing that the client may no longer be capable of providing consent.
[12/05/86, 12/30/86, 7/14/89, 01/15/97; Recompiled 10/31/01]
7.26.6.10 ADMISSION
TO COMMUNITY LIVING SETTINGS:
A. If the person served is found able to consent and agrees to be admitted to the community living-setting they shall record their signature or make other appropriate designation of approval on the admissions document.
B. If the person served is found able to consent and the IDT indicates that the person served would benefit from placement in a community-living setting, but the person served refuses such placement attempt, then the person served may be admitted only upon involuntary commitment under Sections 43-1-13 NMSA 1978, or 43-1-11 NMSA 1978 and 43-1-12 NMSA 1978 of the New Mexico Mental Health and Developmental Disabilities Code.
C. If the person served is found not able to give consent and the IDT indicates that the person served would benefit from placement in a community-living setting, then the program may not admit the person without the consent of a guardian legally authorized to provide or withhold such consent. The exception would be in the case of an emergency admission for a period not to exceed ninety (90) days, pursuant to Section 107 of these Regulations [now 7.26.6.12 NMAC].
[12/30/86, 7/14/89; 01/15/97; Recompiled 10/31/01]
7.26.6.11 WAITING LIST: The department shall maintain an up-to-date waiting list consisting of all persons who need placement in a community living-setting, but are not yet placed in a community living setting. Any program with an opening in a community living-setting may select any person from the waiting list of persons from the developmental disabilities bureau of the department who has been evaluated for admission to the community living-setting. A person should not be admitted to a community living setting unless the community agency agrees to serve that person.
[12/30/86, 7/14/89, 01/15/97; Recompiled 10/31/01]
7.26.6.12 EMERGENCY
SERVICES:
A. Services in a community living setting may be provided on an emergency basis to any person believed to be developmentally disabled when a community agency determines that there is imminent danger that the physical health or safety of the person will be seriously impaired if the services are not provided, and that the normal admissions procedure, including consent screening and evaluation, cannot be accomplished in time to avoid danger.
B. When emergency services are provided, the community agency should document the nature of the emergency resulting in services being provided.
C. When the person served is receiving emergency services, the community agency should evaluate the person in a timely manner to determine if the person served will continue to receive services from their community agency.
D. Emergency services should not be provided for more than seven days unless an evaluation has begun, or, for more than twenty-one (21) days in total, unless a court or the department orders otherwise.
[12/30/86, 7/14/89, 01/15/97; Recompiled 10/31/01]
7.26.6.13 NOTICE OF THE DEATH OF A PERSON SERVED:
A. The
agency shall have policies and procedures regarding the death of a person under
supervision of the agency. These
policies and procedures shall include:
(1) staff responsibilities and protocols for
handling the immediate situation;
(2) person(s) to be notified and procedure
for notification;
(3) provisions for disposal of estate and
person’s funds, when person has no relevant person(s) to perform these duties.
B. If
termination of services is the result of a person’s death, the following
information shall be prepared for the person’s file and sent to the department:
(1) time and date of person’s death;
(2) cause of death;
(3) circumstances surrounding death;
(4) medical/autopsy report;
(5) summary of any follow-up findings
relating to the death.
[7/14/89; 01/15/97; Recompiled 10/31/01]
7.26.6.14 CARF STANDARDS MANUAL FOR ORGANIZATIONS SERVING PEOPLE WITH DEVELOPMENTAL DISABILITIES: Community agencies governed by these regulations are required to meet applicable provisions of the most current edition of the “CARF Standards Manual for Organizations Serving People with Disabilities”. Sections of the CARF standards may be waived by the Department when deemed not applicable to the services provided by the community agency.
[7/14/89; 01/15/97; Recompiled 10/31/01]
HISTORY OF 7.26.6 NMAC:
Pre-NMAC History: The material in this part was derived from that previously filed with the State Records Center:
HED 83-6 (BHSD), Program Standards For Developmental Disabilities Community Agencies, 8/9/83.
HED 86-11 (BHSD), Program Standards For Developmental Disabilities Community Agencies, 12/5/86.
HED 86-12 (BHSD), Regulations Governing Procedures For Adminission To And Habilitation In Community Living Facilities, 12/30/86.
HED 89-4 (BHSD), Program Standards For Developmental Disabilities Community Programs, 7/14/89.
History of Repealed Material: [Reserved]