SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 9
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 WHO 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. "employee" means a 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;
D. "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;
E. "neglect" means the failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness;
F. "provider" means an agency or organization, excluding a managed care organization unless the employees of the managed care organization provide respite care, deliver home and community-based services to adults or children with developmental disabilities or physical disabilities or to the elderly, including intermediate care facilities for the mentally retarded;
G. "registry" means the "health care registry"; and
H. "secretary" means the secretary of health.
Section 3. REGISTRY OF EMPLOYEES WHO HAVE COMMITTED ABUSE, NEGLECT OR MISAPPROPRIATION OF PROPERTY.--
A. The department shall establish a "health care registry" of employees who have committed abuse, neglect or misappropriation of property as determined by the department 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 is included in the registry, the department shall inform the provider whether the 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 who 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 or retain an employee because the employee is included in the registry is presumed to be acting in good faith and shall be immune from liability for both civil and criminal damages that might otherwise be incurred or imposed by law, unless the provider acted in bad faith or with malicious purpose in a civil action brought by the employee or applicant for employment.
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.
I. The department shall promulgate rules as necessary to carry out the provisions of the Health Care Registry Act.
Section 4. REVIEW OF REPORT OF ABUSE, NEGLECT OR MISAPPROPRIATION OF PROPERTY--HEARING--PHASE IN OF PROVIDERS IN THE REGISTRY.--
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 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 abuse, neglect or misappropriation of property.
C. If the department determines that abuse, neglect or misappropriation of property has occurred, the employee and the provider shall be notified by mail of the following:
(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 substantiated findings to the provider that employs the implicated employee and to the registry.
D. The department shall phase in the registry as follows:
(1) employees of providers to adults and children with developmental disabilities by July 1, 2004;
(2) employees of providers to adults and children with physical disabilities and providers to the elderly by July 1, 2005; and
(3) employees of personal care attendants funded through the medicaid program by July 1, 2006.
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 and subsequent fiscal years 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 a fiscal year shall not revert to the general fund.
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