HOUSE BILL 626
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Joseph Cervantes
AN ACT
RELATING TO HEALTH; ENACTING THE EMPLOYEE ABUSE REGISTRY ACT; ESTABLISHING A REGISTRY OF PROVIDER EMPLOYEES WITH SUBSTANTIATED ABUSE, NEGLECT OR EXPLOITATION CHARGES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Employee Abuse Registry Act".
Section 2. DEFINITIONS.--As used in the Employee Abuse Registry Act:
A. "abuse" means:
(1) knowingly, intentionally or negligently and without justifiable cause inflicting physical pain, injury or mental anguish; or
(2) the intentional deprivation by a caretaker or other person of services necessary to maintain the mental and physical health of an adult;
B. "department" means the department of health;
C. "direct care" means face-to-face services provided or routine and unsupervised physical or financial access to a recipient of services;
D. "employee" means a person employed or contracted to provide direct care services or a prospective employee or contractor providing direct care services to persons who are developmentally disabled, physically disabled or elderly, including a personal care attendant funded through the medicaid program. "Employee" does not include a New Mexico licensed health care professional practicing within the scope of the profession's license or a certified nurse aide;
E. "exploitation" means an unjust or improper use of an adult's money or property for another person's profit or advantage, pecuniary or otherwise;
F. "misconduct" means the substantiation of abuse, neglect or exploitation by an employee;
G. "neglect" means failure of the caretaker of an adult to provide basic needs such as clothing, food, shelter, supervision and care for the physical and mental health of that adult or failure by an adult to provide such basic needs for himself;
H. "provider" means a licensed health facility as defined in Subsection D of Section 24-1-2 NMSA 1978, 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, or an agency that delivers services to the physically disabled, including personal care attendants funded through the medicaid program. "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;
I. "registry" means an electronic database that provides information on substantiated employee abuse, neglect or exploitation; and
J. "secretary" means the secretary of health.
Section 3. REVIEW OF REPORT OF ABUSE, NEGLECT OR EXPLOITATION.--
A. In addition to other actions required by law, the department shall review each report it receives of abuse, neglect or exploitation of persons who are developmentally disabled, physically disabled or elderly receiving services from providers who contract with the department or are licensed or certified by the department.
B. The department shall determine whether there is credible information of abuse, neglect or exploitation in the report to warrant an investigation.
C. If there is credible information of abuse, neglect or exploitation in the report, the department shall investigate the allegation and make a determination as to whether abuse, neglect or exploitation has been substantiated.
Section 4. EMPLOYEE ABUSE REGISTRY.--
A. The department shall establish an "employee abuse registry" and enter names into the registry of employees with substantiated abuse, neglect or exploitation charges as determined by the department pursuant to the Employee Abuse Registry Act.
B. The department shall also enter names into the registry of employees with substantiated abuse, neglect or exploitation charges as determined by the adult protective services division of the aging and long-term services department pursuant to the Adult Protective Services Act.
C. Before a provider hires or contracts with an employee, the provider shall inquire of the department's registry as to whether the employee is included in the registry.
D. When the department's registry receives an inquiry, it shall provide information as to whether an employee is included in the registry.
E. Providers shall maintain documentation demonstrating that they have accessed and reviewed the registry for each applicant being considered for employment or contract.
F. A provider shall not hire or contract with an employee in a direct care 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.
G. The department or other state agency funding a provider may at its discretion decline to enter into or renew a contract with a provider that fails to comply with the provisions of the Employee Abuse Registry Act.
H. A provider that reports allegations of abuse, neglect or exploitation 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.
I. After a period of three 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 an administrative hearing. Persons who are on the registry and have been convicted of felony abuse, neglect or exploitation shall not be removed from the registry.
Section 5. ADMINISTRATIVE HEARINGS.--
A. The department shall adopt rules for administrative due process hearings for employees proposed for inclusion on the employee abuse registry. The hearings shall be conducted in Santa Fe, unless the department agrees to another location for the convenience of the parties and witnesses. The employee has the right to be represented by counsel, to present evidence and witnesses and to examine any opposing witness. The hearing officer has the power to administer oaths, and on the request of any party, to issue subpoenas and subpoenas duces tecum prior to or after the commencement of the hearing to compel discovery and the attendance of witnesses. An employee aggrieved by the final decision of the department following an administrative hearing shall have the right to review pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
B. The department's administrative hearing process is available to employees of providers who contract with the department or providers or facilities that are licensed or certified by the department.
Section 6. ADULT PROTECTIVE SERVICES DIVISION DUTY TO REPORT.--
A. The adult protective services division of the aging and long-term services department shall investigate allegations of abuse, neglect and exploitation consistent with its responsibilities in the Adult Protective Services Act.
B. The adult protective services division shall communicate to the department of health substantiation of abuse, neglect or exploitation of employees of providers defined in the Employee Abuse Registry Act.
C. The department of health shall place on the registry the name of an employee with substantiated abuse, neglect or exploitation charges as determined by the adult protective services division.
D. The adult protective services division shall adopt rules providing an administrative due process hearing for employees found to have committed abuse, neglect or exploitation as determined by the division upon investigation and for whom notice is provided of the employee's proposed inclusion in the registry. The division's administrative due process hearing shall be substantially similar to the administrative hearing provided by the department of health. An employee aggrieved by the final decision following an administrative hearing shall have the right to judicial review pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
Section 7. ADOPTION OF RULES.--By January 1, 2007, the department shall adopt rules necessary to carry out the provisions of the Employee Abuse Registry Act, including procedures for determining abuse, neglect and exploitation, procedures for reporting, for the administrative hearing process and for sanctions for failure to comply with the Employee Abuse Registry Act.
Section 8. PENALTIES.--The department shall administer sanctions for provider failure to comply with the Employee Abuse Registry Act, including a directed plan of correction or civil monetary penalty not to exceed ten thousand dollars ($10,000) per instance.
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