Current through Register Vol. 35, No. 11, June 11, 2024
Section 7.1.12.10 - COMPLAINT PROCESSINGA.Assignment of Complaint. The manager or designee shall review the complaints, reports or allegations of abuse, neglect or exploitation, prioritize these complaints and assign appropriate department staff to investigate when warranted, and refer the complaint, report, or allegation to APS, and other appropriate oversight agencies for investigation. (1) Assignment shall be made to appropriate staff of the department of all complaints of abuse, neglect or exploitation involving a provider for whom the department has oversight authority or for whom the department has agreed to investigate.(2) Referral shall be made to APS of complaints of abuse, neglect or exploitation in all instances where the complaint involves a provider of medicaid waiver services administered by the aging and long-term services department and the provider is not otherwise licensed by or under contract with the department.(3) The manager shall prioritize the complaints and ensure that the complaints that allege the most serious incidents of abuse, neglect or exploitation, or that present a high risk of future harm, are promptly investigated.B.Immediate threat to health or safety. In instances where the investigation determines that there exists an immediate threat to the health or safety of a person in the care of a provider, the department or APS, in accordance with applicable statutory authority, will make the necessary arrangements or referrals to ensure the protection of persons at risk of harm or injury. The department will take appropriate action to eliminate or reduce the immediate threat to health or safety with respect to providers it licenses or with whom it contracts.C.Conducting the Investigation. The department investigation of complaints will follow the procedures in this rule. The investigations conducted by APS will comply with applicable APS rules or with the provisions herein. (1) The investigators shall gather all relevant evidence, weigh the evidence including making credibility determinations. Individuals from whom information is gathered may include the reporter, witnesses identified by the reporter, listed on the incident report form or discovered during the investigation, the alleged victim, appropriate representatives of the provider, medical personnel with relevant information, family members and guardians of the alleged victim, any employee suspected of abuse, neglect or exploitation, other recipients of care and services, and other persons possibly having relevant information.(2) Physical injuries that are the subject of the complaint will be observed in person and documented. Complete documentation must be obtained of all objectively verifiable manifestations of mental anguish, verbal abuse, sexual abuse or neglect on the part of the recipient of care or services.(3) The investigator will generally follow department guidelines addressing face-to- face individualized interviews, telephonic interviews, witness statements and documentation of contacts.(4) The investigator will follow established guidelines for clinical consultations.(5) In instances where the investigation results in discovery of other, unrelated instances of possible abuse, neglect or exploitation, the investigator will file an incident report form with the incident management system. However, additional allegations involving the same complaint as the one under investigation are considered the same case and will not be separately reported, although the investigator may supplement the Incident Report.(6) At any time during the investigation, the manager shall make referrals to other licensing authorities based upon information of possible violations of applicable health facility, community provider or health care professional standards.(7) The investigator will submit an investigation report to the manager with recommendations as to whether the complaint is:(c) substantiated registry-referred.(8) Where appropriate, the investigation report may make findings and recommendations with respect to provider responsibility for abuse, neglect or exploitation.(9) The manager shall review the investigation report and recommendations and shall make a determination whether the complaint of abuse, neglect or exploitation is substantiated.(10) If the manager determines, as a result of the manager's review of the investigation report and recommendations, that the complaint is substantiated, the manager shall apply the appropriate severity standard to the substantiated complaint to further determine if the complaint is substantiated registry-referred.D.Investigation File and Report. The department shall establish an investigation file, which shall contain all applicable information relating to the complaint including the incident report form, correspondence, investigation, referrals, determinations, secretary's decision, and notices of appeal. Following the investigation and determination by the manager, the complaint and investigation file will be maintained by the custodian. The investigator, or the investigator from the lead agency in a joint investigation, shall prepare and submit a written investigation report. The investigation report shall be part of the investigation file. The investigation report shall contain a review of the evidence obtained during the investigation, including but not limited to: (1) interviews conducted and written statements;(2) interviews and statements reviewed that were originally conducted or obtained by other entities such as the provider, other health care facilities and medical providers, or law enforcement;(3) documents, diagrams, photographs and other tangible evidence obtained or reviewed;(4) a description of any actions taken by the provider in a response to the complaint or situation under investigation; and,(5) analysis of the evidence and recommendations.E.Timeline and processing of a complaint. The investigation of each complaint shall be completed by the department within sixty (60) calendar days of receipt of the complaint. (1) The investigation report shall be submitted to the manager no later that sixty (60) calendar days following the receipt of the complaint.(2) The manager shall review the investigatory findings and recommendations and make a determination within five (5) business days of receipt of the findings as to whether the complaint of abuse, neglect or exploitation is substantiated registry-referred.(3) The manager may issue a specific extension of any complaint processing deadline if reasonable grounds exist for such extension and the reasons are set out in the written extension. The written extension is included in the investigation file. Grounds for an extension may include, but are not limited to, the temporary non-availability of witnesses or documentary evidence, or the need for information not yet available from other entities that may be involved with an investigation into the facts that form the basis of the complaint, including the office of the medical investigator and agencies charged with law enforcement, auditing, financial oversight, fraud investigation, or advocacy.F.Validity of enforcement actions. Failure by the department or APS to comply with the procedures or time requirements set out in this section does not abrogate or invalidate any action taken against an employee pursuant to this rule, or any action taken against a provider for noncompliance with this rule or any other applicable law or regulation. However any such failure may be admitted into evidence at a hearing.7.1.12.10 NMAC - N, 1/1/2006