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 a person;
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 by or on contract with a provider, either directly or through a third party arrangement to provide direct care. "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 a person's money or property for another person's profit or advantage, pecuniary or otherwise;
F. "neglect" means, subject to a person's right to refuse treatment and subject to a provider's right to exercise sound medical discretion, the failure of an employee to provide basic needs such as clothing, food, shelter, supervision and care for the physical and mental health of a person or failure by a person that may cause physical or psychological harm;
G. "provider" means an intermediate care facility for the mentally retarded; a rehabilitation facility; a home health agency; a homemaker agency; a home for the aged or disabled; a group home; an adult foster care home; a case management entity that provides services to elderly people or people with developmental disabilities; a corporate guardian; a private residence that provides personal care, adult residential care or natural and surrogate family services provided to persons with developmental disabilities; an adult daycare center; a boarding home; an adult residential care home; a residential service or habilitation service authorized to be reimbursed by medicaid; any licensed or medicaid-certified entity or any program funded by the aging and long-term services department that provides respite, companion or personal care services; programs funded by the children, youth and families department that provide homemaker or adult daycare services; and any other individual, agency or organization that provides respite care or delivers home- and community-based services to adults or children with developmental disabilities or physical disabilities or to the elderly, but 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;
H. "registry" means an electronic database that provides information on substantiated employee abuse, neglect or exploitation; and
I. "secretary" means the secretary of health.
Section 3. EMPLOYEE ABUSE REGISTRY.--
A. The department shall establish an "employee abuse registry" of employees and enter into the registry names of employees with substantiated abuse, neglect or exploitation charges as determined by the department pursuant to the Employee Abuse Registry Act.
B. 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.
C. When the department's registry receives an inquiry, the department shall inform the provider whether an employee is included in the employee abuse registry.
D. Providers that hire employees shall document that they have checked the abuse registry for each applicant being considered for employment or contract.
E. A provider shall not hire or contract with an employee in a direct care setting who is included in the employee abuse registry.
F. The department or other governmental agency may, at its discretion, terminate or 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, including its administrators and employees, is not civilly liable to an applicant or an employee for a good faith decision to employ, not employ or terminate employment pursuant to the Employee Abuse Registry Act.
H. After a period of three years, an employee placed on the employee abuse registry may petition the department for removal of the employee's name from the employee abuse registry. Petitions for removal shall be in writing and mailed or hand delivered to the department. Within thirty days of the department's receipt of a petition, the secretary shall issue a written decision on the petition and provide that decision to the employee in person or by certified mail. If the secretary denies the petition, the employee may, within ten days of receipt of that decision, request a hearing. If an employee requests a hearing, that hearing shall be conducted by an independent hearing officer. An employee aggrieved by the final decision following a hearing shall have the right to judicial review pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
Section 4. INVESTIGATION AND SUBSTANTIATION OF ABUSE, NEGLECT OR EXPLOITATION BY THE DEPARTMENT.--
A. In addition to other actions required by law, the department shall review all reports of abuse, neglect or exploitation against employees of providers that are licensed by or under contract with the department and shall investigate such reports as necessary to determine whether there is a reasonable basis to believe that an employee committed abuse, neglect or exploitation.
B. If the department determines that abuse, neglect or exploitation has occurred, the department shall notify the employee and the provider of that determination, and such determination shall include a determination of whether the abuse, neglect or exploitation was the result of conduct by the employee, the provider or both.
Section 5. ADULT PROTECTIVE SERVICES DIVISION REPORT OF ABUSE, NEGLECT OR EXPLOITATION.--
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 statutory responsibilities.
B. If the adult protective services division determines that abuse, neglect or exploitation has occurred, it shall notify the employee and the provider of that determination, and such determination shall include a determination of whether the abuse, neglect or exploitation was the result of conduct by the employee, the provider or both.
C. The adult protective services division shall report to the department of health any substantiated finding of abuse, neglect or exploitation made against an employee of a provider under waiver or other programs administered by the aging and long-term services department and not otherwise licensed by or under contract with the department.
Section 6. PLACEMENT ON REGISTRY AND HEARING PROCESS.--
A. If the department or the adult protective services division of the aging and long-term services department determines that abuse, neglect or exploitation by an employee has occurred, the department making that determination shall notify the employee and the provider, in person or by certified mail, of the following:
(1) the nature of the determination of the abuse, neglect or exploitation;
(2) the date and time of the occurrence;
(3) the employee's right to a 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 reporting substantiated findings to the registry and the provider.
B. If an employee requests a hearing, that hearing shall be conducted by an independent hearing officer of the department that made the determination of abuse, neglect or exploitation.
C. After expiration of the time period for requesting a hearing, or if a determination of abuse, neglect or exploitation is substantiated through the hearing process, the substantiated finding of abuse, neglect or exploitation shall be placed on the registry through a report of the appropriate department.
D. An employee aggrieved by the final decision following a 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, 2006, the department of health and the aging and long-term services department shall jointly establish and adopt rules necessary to carry out the provisions of the Employee Abuse Registry Act, including procedures for determining abuse, neglect and exploitation that consider the severity of the alleged abuse, neglect and exploitation and 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 a provider's failure to comply with the Employee Abuse Registry Act, including a directed plan of correction or civil monetary penalty not to exceed five thousand dollars ($5,000) per instance.
HLC/HB 626
Page 8