HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BUSINESS AND INDUSTRY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 245
46th legislature - STATE OF NEW MEXICO - second session, 2004
AN ACT
RELATING TO HEALTH; ENACTING THE HEALTH CARE REGISTRY ACT; ESTABLISHING A REGISTRY OF EMPLOYEES DETERMINED TO HAVE COMMITTED ABUSE, NEGLECT OR MISAPPROPRIATION OF PROPERTY; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Health Care Registry Act".
Section 2. DEFINITIONS.--As used in the Health Care Registry Act:
A. "abuse" means the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish;
B. "department" means the department of health;
C. "direct care" means face-to-face services provided to a service recipient;
D. "employee" means a non-licensed person employed or contracted to provide services to persons who are developmentally disabled, physically disabled or elderly, including a personal care attendant funded through the medicaid program;
E. "misappropriation of property" means the deliberate misplacement, exploitation or wrongful, temporary or permanent use of a resident's belongings or money without the resident's consent;
F. "neglect" means the failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness;
G. "provider" means an agency or organization that delivers home and community-based services to adults or children with developmental disabilities, including an intermediate care facility for the mentally retarded, an agency that delivers services to the elderly or an agency that delivers services to the physically disabled. "Provider" does not include managed care organizations, except for their employees who provide respite care to persons who are developmentally disabled, physically disabled or elderly;
H. "reasonable basis" means when facts and circumstances within the provider's knowledge and of which the provider had reasonably trustworthy information are sufficient in themselves to justify a determination that abuse, neglect or misappropriation of property has occurred;
I. "registry" means the health care registry; and
J. "secretary" means the secretary of health.
Section 3. REGISTRY OF EMPLOYEES DETERMINED TO HAVE COMMITTED ABUSE, NEGLECT OR MISAPPROPRIATION OF PROPERTY.--
A. The department shall establish a "health care registry" of employees determined by the department to have committed abuse, neglect or misappropriation of property pursuant to the Health Care Registry Act.
B. Before a provider hires or contracts with an employee, the provider shall inquire of the department whether the employee is included in the registry.
C. When the department receives an inquiry regarding whether the employee or prospective employee is included in the registry, the department shall inform the provider whether the employee or prospective employee is included in the registry.
D. Providers that hire employees shall maintain documentation demonstrating that they have checked the registry for each applicant being considered for employment.
E. A provider shall not hire or contract with an employee in a direct care setting or other setting that allows for routine and unsupervised physical or financial access to persons who are developmentally disabled, physically disabled or elderly if the employee is included in the registry.
F. A division of the department or other governmental agency funding services to the developmentally disabled, physically disabled or elderly or contracting for the personal care attendant option of the medicaid program may at its discretion not enter into or renew a contract with a provider that fails to comply with the provisions of Subsection E of this section.
G. A provider that reports allegations of abuse, neglect or misappropriation of property or that fails to hire an employee because the employee is included in the registry is presumed to be acting in good faith and shall be immune from liability as to that employee for both civil and criminal culpability. If, however, the provider acted in bad faith or with malicious purpose, the provider is not immune from liability as to that employee.
H. After a period of five years, an employee placed on the registry may petition the department for removal of the employee's name from the registry. Petitions for removal shall be in writing and mailed or hand-delivered to the department. Upon receipt of a petition, the department shall conduct a fair hearing. Judicial review pursuant to Section 39-3-1.1 NMSA 1978 shall apply.
I. By January 1, 2005, the department shall promulgate rules necessary to carry out the provisions of the Health Care Registry Act, including an articulation of standards for determining neglect and a phase-in of the registry by July 1, 2006 for employees of:
(1) providers to adults and children with developmental disabilities;
(2) providers to adults and children with physical disabilities;
(3) providers to the elderly; and
(4) personal care attendants funded through the medicaid program.
J. The department shall promulgate rules necessary for the implementation of the Health Care Registry Act. The rules shall include:
(1) the information that shall appear in the registry;
(2) the procedure for making a determination of abuse, neglect or misappropriation of property pursuant to the provisions of this section;
(3) the time frame within which the department shall inform a provider whether an employee is included in the registry following the department's receipt of an inquiry by a provider pursuant to the provisions of this section;
(4) the procedure to be followed for reporting abuse, neglect or misappropriation of property, for reviewing and investigating a claim of abuse, neglect or misappropriation of property and for determining whether there is a reasonable basis for a complaint of abuse, neglect or misappropriation of property pursuant to the provisions of Section 4 of the Health Care Registry Act;
(5) the process by which the department informs the employee of the employee's due process rights, including the right to a hearing pursuant to the provisions of Section 4 of the Health Care Registry Act;
(6) what constitutes a reasonable basis for a complaint pursuant to the provisions of Section 4 of this act; (7) the process by which the department shall access an employee's records; and
(8) the process by which a provider shall maintain documentation on accessing registry information.
Section 4. REVIEW OF REPORT OF ABUSE, NEGLECT OR MISAPPROPRIATION OF PROPERTY--HEARING.--
A. In addition to other actions required by law, the department shall review each report it receives of abuse, neglect or misappropriation of property of a person who is developmentally disabled, physically disabled or elderly being served by providers. The department shall also review the reports of abuse, neglect or misappropriation of property that involves employees of providers that it receives from the children, youth and families department or a protective services agency.
B. The department shall investigate all allegations to determine whether there is a reasonable basis for a complaint of abuse, neglect or misappropriation of property.
C. If the department determines that abuse, neglect or misappropriation of property has occurred, the department shall notify the employee by personal service or by registered mail with a return receipt of the employee's right to a fair hearing. The notice, which shall also be mailed to the provider, shall include:
(1) the nature of the determination of the abuse, neglect or misappropriation of property;
(2) the date and time of the occurrence;
(3) the employee's right to a fair hearing;
(4) the department's intent to report the substantiated findings, once the employee has had the opportunity for a hearing, to the registry; and
(5) that the employee's failure to request a hearing in writing within thirty days from the date of the notice shall result in the department's reporting of the employee's placement on the registry to the provider that employs the implicated employee, to the employee and to the registry.
D. If an employee waives the right to a hearing or receives a hearing pursuant to Subsection C of this section and the decision of the hearing upholds the department's determination that abuse, neglect or misappropriation of property has occurred, the department shall report the employee's placement on the registry to the provider that employs the implicated employee, to the employee and to the registry.
E. If an employee receives a hearing pursuant to Subsection C of this section and the decision of the hearing does not uphold the department's determination that abuse, neglect or misappropriation of property has occurred, the department shall notify the employee and the provider by mail that the department's determination was unsubstantiated and that the department will not report its findings to the registry.
F. If the department determines that the employee has committed abuse, neglect or misappropriation of property, the department shall notify the employee of the employee's right to judicial review pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
G. Records obtained by the department pursuant to the Health Care Registry Act shall be used only to determine whether an employee has committed abuse, neglect or misappropriation of property that would disqualify the employee from employment as a caregiver.
H. The department shall not implement the registry if funding is not available for implementation.
Section 5. APPROPRIATION.--Fifty thousand dollars ($50,000) is appropriated from the general fund to the department of health for expenditure in fiscal year 2005 to administer a registry of employees who have committed abuse, neglect or misappropriation of property of the developmentally disabled, physically disabled or elderly pursuant to the Health Care Registry Act. Any unexpended or unencumbered balance remaining at the end of fiscal year 2005 shall revert to the general fund.
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