HB0202

HOUSE BILL 202

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Meredith Dixon and Candie G. Sweetser and Marian Matthews

and Rebecca Dow and Melanie Ann Stansbury

AN ACT

RELATING TO CHILDREN; AMENDING THE DEPARTMENT OF HEALTH ACT, ABUSE AND NEGLECT ACT AND CHILDREN'S MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES ACT; PROVIDING ADDITIONAL REQUIREMENTS FOR CHILDREN IN CUSTODY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 9-7-6.4 NMSA 1978 (being Laws 2004, Chapter 46, Section 8, as amended) is amended to read:

"9-7-6.4. INTERAGENCY BEHAVIORAL HEALTH PURCHASING COLLABORATIVE.--

A. There is created the "interagency behavioral health purchasing collaborative", consisting of the secretaries of aging and long-term services; Indian affairs; human services; health; corrections; children, youth and families; finance and administration; workforce solutions; public education; and transportation; the directors of the administrative office of the courts; the New Mexico mortgage finance authority; the governor's commission on disability; the developmental disabilities planning council; the instructional support and vocational [rehabilitation] education division of the public education department; and the New Mexico health policy commission; and the governor's health policy coordinator, or their designees. The collaborative shall be chaired by the secretary of human services with the respective secretaries of health and children, youth and families alternating annually as co-chairs.

B. The collaborative shall meet regularly and at the call of either co-chair and shall:

(1) identify behavioral health needs statewide, with an emphasis on that hiatus between needs and services set forth in the department of health's gap analysis and in ongoing needs assessments, and develop a master plan for statewide delivery of services;

(2) give special attention to regional differences, including cultural, rural, frontier, urban and border issues;

(3) inventory all expenditures for behavioral health, including mental health and substance abuse;

(4) plan, design and direct a statewide behavioral health system, ensuring both availability of services and efficient use of all behavioral health funding, taking into consideration funding appropriated to specific affected departments; and

(5) contract for operation of one or more behavioral health entities to ensure availability of services throughout the state.

C. The plan for delivery of behavioral health services shall include specific service plans to address the needs of infants, children, adolescents, including the unique needs of those in the custody of the children, youth and families department, adults and seniors, as well as to address workforce development and retention and quality improvement issues. The plan shall be revised every two years and shall be adopted by the department of health as part of the statewide health plan.

D. The plan shall take the following principles into consideration, to the extent practicable and within available resources:

(1) services should be individually centered and family focused based on principles of individual capacity for recovery and resiliency;

(2) services should be delivered in a culturally responsive manner in a home- or community-based setting, where possible;

(3) services should be delivered in the least restrictive and most appropriate manner;

(4) individualized service planning and case management should take into consideration individual and family circumstances, abilities and strengths and be accomplished in consultation with appropriate family members, caregivers and other persons critical to the individual's life and well-being;

(5) services should be coordinated, accessible, accountable and of high quality;

(6) services should be directed by the individual or family served to the extent possible;

(7) services may be consumer- or family- provided, as defined by the collaborative;

(8) services should include behavioral health promotion, prevention, early intervention, treatment and community support; and

(9) services should consider regional differences, including cultural, rural, frontier, urban and border issues.

E. The plan shall include a process for the human services department and the children, youth and families department to jointly offer trauma-responsive services and supports, including screening, assessing, referring, treating and providing transition services to children in the custody of the children, youth and families department, including children who were never removed from the home and children who have returned home but are still in custody.

[E.] F. The collaborative shall seek and consider suggestions of Native American representatives from Indian nations, tribes and pueblos and the urban Indian population, located wholly or partially within New Mexico, in the development of the plan for delivery of behavioral health services.

[F.] G. Pursuant to the State Rules Act, the collaborative shall adopt rules through the human services department for:

(1) standards of delivery for behavioral health services provided through contracted behavioral health entities, including:

(a) quality management and improvement;

(b) performance measures;

(d) utilization management;

(e) credentialing of providers;

(f) rights and responsibilities of consumers and providers;

(g) clinical evaluation and treatment and supporting documentation; and

(h) confidentiality of consumer records; and

(2) approval of contracts and contract amendments by the collaborative, including public notice of the proposed final contract.

[G.] H. The collaborative shall, through the human services department, submit a separately identifiable consolidated behavioral health budget request. The consolidated behavioral health budget request shall account for requested funding for the behavioral health services program at the human services department and any other requested funding for behavioral health services from agencies identified in Subsection A of this section that will be used pursuant to Paragraph (5) of Subsection B of this section. Any contract proposed, negotiated or entered into by the collaborative is subject to the provisions of the Procurement Code.

[H.] I. The collaborative shall, with the consent of the governor, appoint a "director of the collaborative". The director is responsible for the coordination of day-to-day activities of the collaborative, including the coordination of staff from the collaborative member agencies.

[I.] J. The collaborative shall provide a quarterly report to the legislative finance committee on performance outcome measures. The collaborative shall submit an annual report to the legislative finance committee and the interim legislative health and human services committee that provides information on:

(1) the collaborative's progress toward achieving its strategic plans and goals;

(2) the collaborative's performance information, including contractors and providers; and

(3) the number of people receiving services, the most frequently treated diagnoses, expenditures by type of service and other aggregate claims data relating to services rendered and program operations."

SECTION 2. Section 32A-4-14 NMSA 1978 (being Laws 1993, Chapter 77, Section 108, as amended) is amended to read:

"32A-4-14. CHANGE IN PLACEMENT.--

A. When the child's placement is changed, including a return to the child's home, written notice of the factual grounds supporting the change in placement shall be sent to the child's guardian ad litem or attorney, all parties, the child's CASA, the child's foster parents and the court ten days prior to the placement change, unless an emergency situation requires moving the child prior to sending notice.

B. When the child, by and through the child's guardian ad litem or attorney, files a motion and requests a court hearing to contest the proposed change, the department shall not change the child's placement pending the results of the court hearing, unless an emergency requires changing the child's placement prior to the hearing.

C. When a child's placement is changed without prior notice as provided for in Subsection A of this section, written notice shall be sent to the child's guardian ad litem or attorney, all parties, the child's CASA, the child's foster parents and the court within three days after the placement change.

D. Written notice is not required for removal of a child from temporary emergency care, emergency foster care or respite care. The department shall provide oral notification of the removal to the child's guardian ad litem or attorney.

E. Notice need not be given to the parties, other than the child, or to the court when placement is changed at the request of the child's foster parents or substitute care provider. Notice shall be given to the child's guardian ad litem or attorney.

F. A child shall not be placed in a hotel or motel or with an out-of-state provider, office of a contractor or state agency office except in extraordinary circumstances necessary to protect the safety and security of the child as documented in the child's record and approved by the secretary of the department or the director of the protective services division of the department. In any such extraordinary circumstance, the department shall immediately provide notice to the child's guardian ad litem or attorney when possible, but in no case more than twenty-four hours after the placement of the child. Notification to the court specifying the type of placement and articulating the extraordinary circumstance shall occur within three business days of the placement. When a child is placed with an out-of-state provider, notice to the child's guardian ad litem or attorney and the court to which the child's case is assigned shall be given prior to the placement.

G. For a child in out-of-home care, the rate of moves from a placement setting shall not exceed three moves per one thousand calendar days in custody. When the department initiates the third change of placement within one thousand calendar days in custody, the department shall provide notice ten days prior to the placement change to the child's guardian ad litem or attorney and the court specifying that this will be the third placement change within the last one thousand calendar days of time spent in custody. The notice shall also specify what interventions, behavioral supports and services are in place to support the child. In addition, the department shall initiate a written education plan to ensure continuity in the child's education, including a plan for transportation and educational supports to minimize the transition. The education plan shall be provided to the child's guardian ad litem or attorney."

SECTION 3. Section 32A-6A-4 NMSA 1978 (being Laws 2007, Chapter 162, Section 4, as amended) is amended to read:

"32A-6A-4. DEFINITIONS.--As used in the Children's Mental Health and Developmental Disabilities Act:

A. "aversive intervention" means any device or intervention, consequences or procedure intended to cause pain or unpleasant sensations, including interventions causing physical pain, tissue damage, physical illness or injury; electric shock; isolation; forced exercise; withholding of food, water or sleep; humiliation; water mist; noxious taste, smell or skin agents; and over-correction;

B. "behavioral health services" means a comprehensive array of professional and ancillary services for the treatment, habilitation, prevention and identification of mental illnesses, behavioral symptoms associated with developmental disabilities, substance abuse disorders and trauma spectrum disorders;

C. "capacity" means a child's ability to:

(1) understand and appreciate the nature and consequences of proposed health care, including its significant benefits, risks and alternatives to proposed health care; and

(2) make and communicate an informed health care decision;

D. "chemical restraint" means a medication that is not standard treatment for the patient's medical or psychiatric condition that is used to control behavior or to restrict a patient's freedom of movement;

E. "child" means a person who is a minor;

F. "clinician" means a person whose licensure allows the person to make independent clinical decisions, including a physician, licensed psychologist, psychiatric nurse practitioner, licensed independent social worker, licensed marriage and family therapist and licensed professional clinical counselor;

G. "continuum of services" means a comprehensive array of emergency, outpatient, intermediate and inpatient services and care, including screening, early identification, diagnostic evaluation, medical, psychiatric, psychological and social service care, habilitation, education, training, vocational rehabilitation and career counseling;

H. "developmental disability" means a severe chronic disability that:

(1) is attributable to a mental or physical impairment or a combination of mental or physical impairments;

(2) is manifested before a person reaches twenty-two years of age;

(3) is expected to continue indefinitely;

(4) results in substantial functional limitations in three or more of the following areas of major life activities:

(a) self-care;

(b) receptive and expressive language;

(d) mobility;

(e) self-direction;

(f) capacity for independent living; or

(g) economic self-sufficiency; and

(5) reflects a person's need for a combination and sequence of special, interdisciplinary or other supports and services that are of lifelong or extended duration that are individually planned or coordinated;

I. "evaluation facility" means a community mental health or developmental disability program, a medical facility having psychiatric or developmental disability services available or, if none of the foregoing is reasonably available or appropriate, the office of a licensed physician or a licensed psychologist, any of which shall be capable of performing a mental status examination adequate to determine the need for appropriate treatment, including possible involuntary treatment;

J. "family" means persons with a kinship relationship to a child, including the relationship that exists between a child and a biological or adoptive parent, relative of the child, a step-parent, a godparent, a member of the child's tribe or clan or an adult with whom the child has a significant bond;

K. "habilitation" means services, including behavioral health services based on evaluation of the child, that are aimed at assisting the child to prevent, correct or ameliorate a developmental disability. The purpose of habilitation is to enable the child to attain, maintain or regain maximum functioning or independence. "Habilitation" includes programs of formal, structured education and treatment and rehabilitation services;

L. "individual instruction" means a child's direction concerning a mental health treatment decision for the child, made while the child has capacity and is fourteen years of age or older, which is to be implemented when the child has been determined to lack capacity;

M. "least restrictive means principle" means the conditions of habilitation or treatment for the child, separately and in combination that:

(1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives for the child;

(2) involve no restrictions on physical movement and no requirement for residential care, except as reasonably necessary for the administration of treatment or for the protection of the child or others from physical injury; [and]

(3) are conducted at the suitable available facility closest to the child's place of residence;

(4) are provided, in descending order of preference, at home, in a family setting or in the most home-like setting appropriate to a child's needs and consistent with the Children's Code; and

(5) are provided at the suitable available placement closest to the child's place of residence, with the goal of keeping the child in the child's family and community to the extent appropriate to the child's needs and circumstances;

N. "legal custodian" means a biological or adoptive parent of a child unless legal custody has been vested in a person, department or agency and also includes a person appointed by an unexpired power of attorney;

O. "licensed psychologist" means a person who holds a current license as a psychologist issued by the New Mexico state board of psychologist examiners;

P. "likelihood of serious harm to self" means that it is more likely than not that in the near future a child will attempt to commit suicide or will cause serious bodily harm to the child by violent or other self-destructive means, as evidenced by behavior causing, attempting or threatening such harm, which behavior gives rise to a reasonable fear of such harm from the child;

Q. "likelihood of serious harm to others" means that it is more likely than not that in the near future the child will inflict serious bodily harm on another person or commit a criminal sexual offense, as evidenced by behavior causing, attempting or threatening such harm, which behavior gives rise to a reasonable fear of such harm from the child;

R. "mechanical restraint" means any device or material attached or adjacent to the child's body that restricts freedom of movement or normal access to any portion of the child's body and that the child cannot easily remove but does not include mechanical supports or protective devices;

S. "mechanical support" means a device used to achieve proper body position, designed by a physical therapist and approved by a physician or designed by an occupational therapist, such as braces, standers or gait belts, but not including protective devices;

T. "medically necessary services" means clinical and rehabilitative physical, mental or behavioral health services that are:

(1) essential to prevent, diagnose or treat medical conditions or are essential to enable the child to attain, maintain or regain functional capacity;

(2) delivered in the amount, duration, scope and setting that is clinically appropriate to the specific physical, mental and behavioral health care needs of the child;

(3) provided within professionally accepted standards of practice and national guidelines; and

(4) required to meet the physical, mental and behavioral health needs of the child and are not primarily for the convenience of the child, provider or payer;

U. "mental disorder" means a substantial disorder of the child's emotional processes, thought or cognition, not including a developmental disability, that impairs the child's:

(1) functional ability to act in developmentally and age-appropriate ways in any life domain;

(2) judgment;

(3) behavior; and

(4) capacity to recognize reality;

V. "mental health or developmental disabilities professional" means a person who by training or experience is qualified to work with persons with mental disorders or developmental disabilities;

W. "out-of-home treatment or habilitation program" means an out-of-home residential program that provides twenty-four-hour care and supervision to children with the primary purpose of providing treatment or habilitation to children. "Out-of-home treatment or habilitation program" includes, but is not limited to, treatment foster care, group homes, psychiatric hospitals, psychiatric residential treatment facilities and non-medical and community-based residential treatment centers;

X. "parent" means a biological or adoptive parent of a child whose parental rights have not been terminated;

Y. "physical restraint" means the use of physical force without the use of any device or material that restricts the free movement of all or a portion of a child's body;

Z. "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 or occupation or during transportation;

AA. "residential treatment or habilitation program" means diagnosis, evaluation, care, treatment or habilitation rendered inside or on the premises of a mental health or developmental disabilities facility, hospital, clinic, institution, supervisory residence or nursing home when the child resides on the premises and where one or more of the following measures is available for use:

(1) a mechanical device to restrain or restrict the child's movement;

(2) a secure seclusion area from which the child is unable to exit voluntarily;

(3) a facility or program designed for the purpose of restricting the child's ability to exit voluntarily; and

(4) the involuntary emergency administration of psychotropic medication;

BB. "restraint" means the use of a physical, chemical or mechanical restraint;

CC. "seclusion" means the confinement of a child alone in a room from which the child is physically prevented from leaving;

DD. "trauma-responsive" means an approach to providing care that, in all aspects of service delivery, recognizes and addresses the behavioral, social, medical and neurodevelopmental impacts of trauma using community-based, evidence-supported and promising practices to promote resiliency and recovery; trauma-responsive services reflect an understanding of the prevalence of trauma and are specifically designed to avoid re-traumatizing those they serve;

[DD.] EE. "treatment" means provision of behavioral health services based on evaluation of the child, aimed at assisting the child to prevent, correct or ameliorate a mental disorder. The purpose of treatment is to enable the child to attain, maintain or regain maximum functioning;

[EE.] FF. "treatment team" means a team consisting of the child, the child's parents unless parental rights have specifically been limited pursuant to an order of a court, legal custodian, guardian ad litem, treatment guardian, clinician and any other professionals involved in treatment of the child, other members of the child's family, if requested by the child, and the child's attorney if requested by the child, unless in the professional judgment of the treating clinician for reasons of safety or therapy one or more members should be excluded from participation in the treatment team; and

[FF.] GG. "treatment plan" means an individualized plan developed by a treatment team based on assessed strengths and needs of the child and family."

SECTION 4. Section 32A-6A-7 NMSA 1978 (being Laws 2007, Chapter 162, Section 7) is amended to read:

"32A-6A-7. RIGHT TO INDIVIDUALIZED TREATMENT OR HABILITATION SERVICES AND PLAN.--

A. A child receiving mental health or habilitation services shall have the right to prompt, evidence-based treatment and habilitation pursuant to an individualized treatment plan that is culturally and linguistically competent and consistent with the least restrictive means principle.

B. A preliminary treatment plan shall be prepared within seven days of initial provision of mental health or habilitation services.

C. An individualized treatment or habilitation plan shall be prepared within twenty-one days of the provision of mental health or habilitation services.

D. The individualized treatment or habilitation plan shall be developed by the child's treatment team. The child, [and] the child's legal custodian and parent and other relevant family members shall, to the maximum extent possible, be involved in the preparation of the child's individualized treatment or habilitation plan.

E. An individualized treatment or habilitation plan shall include:

(1) a statement of the nature of the specific problem and the specific needs of the child;

(2) a statement of the least restrictive conditions necessary to achieve the purposes of treatment or habilitation;

(3) a description of intermediate and long-range goals, with the projected timetable for their attainment;

(4) a statement and rationale for the plan of treatment or habilitation for achieving these intermediate and long-range goals;

(5) specification of staff responsibility and a description of the proposed staff involvement with the child in order to attain these goals;

(6) criteria for release to less restrictive settings for treatment or habilitation, criteria for discharge and a projected date for discharge; and

(7) provision for access to cultural practices and traditional treatments in accordance with the child's assessed needs, and for an Indian child, culturally competent placement, treatment and practices and, after appropriate consent, tribal consultation.

F. A treatment or habilitation plan for a child in an out-of-home treatment or habilitation program shall be based on documented assessments that may include assessments of mental status; intellectual function; psychological status, including the use of psychological testing; psychiatric evaluation and medication; education, vocation, psychosocial assessment, physical status and the child's cultural needs.

G. A treatment or habilitation plan for children in the custody of the department, including children who were never removed from the home or children who have returned home but who are still in custody, shall provide for trauma-responsive services, including screenings, assessments, referrals, treatment and transition services.

[G.] H. The child's progress in attaining the goals and objectives set forth in the individualized treatment or habilitation plan shall be monitored and noted in the child's records, and revisions in the plan may be made as circumstances require. The members of the child's treatment team shall be informed of major changes and shall have the opportunity to participate in decisions."

- 21 -