8.370.25 NMAC

Certified Nurse Aides

This regulation establishes hearing procedures for certified nurse aides (CNAs) on the New Mexico nurse aide registry who are alleged to have committed abuse, neglect, or exploitation of residents in skilled nursing facilities or nursing facilities. It covers the investigation process, notification requirements, hearing conduct, final decision-making, and reporting of findings to the nurse aide registry. It also provides a process for nurse aides to petition for removal of their name from the registry in cases of neglect findings.

TITLE 8
 
SOCIAL
SERVICES

CHAPTER 370
 
OVERSIGHT
OF LICENSED HEALTHCARE FACILITIES AND COMMUNITY BASED WAIVER PROGRAMS

PART 25
 
HEARING REQUIREMENTS FOR CERTIFIED
NURSE AIDES

8.370.25.1
 
ISSUING AGENCY:
 
New Mexico Health Care Authority.

[8.370.25.1
NMAC - N, 7/1/2024]

8.370.25.2
 
SCOPE:
 
These regulations apply to nurse aides on the
nurse aide registry who may perform nurse aide duties at medicare or medicaid
facilities.

[8.370.25.2
NMAC - N, 7/1/2024]

8.370.25.3
 
STATUTORY AUTHORITY:
 
The regulations set forth herein have been
promulgated by authority of Subsection E of Sections 9-8-6, Subsection O of
Section 24-1-3, and Subsection B of Section 24-2-5 NMSA 1978.
 
Section 9-8-1 et seq.
 
NMSA 1978 establishes the health care
authority (authority) as a single, unified department to administer laws and
exercise functions relating to health care purchasing and regulation.

[8.370.25.3
NMAC - N, 7/1/2024]

8.370.25.4
 
DURATION:
 
Permanent.

[8.370.25.4
NMAC - N, 7/1/2024]

8.370.25.5
 
EFFECTIVE DATE:
 
July 1, 2024, 
 
unless a different date is cited at the end of
a section.

[8.370.25.5
NMAC - N, 7/1/2024]

8.370.25.6
 
OBJECTIVE:
 
The purpose of these regulations is to:

A.
 
provide for notification to the nurse aide of allegations
of abuse, neglect, or exploitation;

B.
 
provide the opportunity for a hearing to the nurse aide
against whom an allegation of abuse, neglect, or exploitation has been made;

C.
 
provide for notification to the nurse aide and the nurse
aide registry if the allegations are substantiated and upheld following any
appeal requested pursuant to these regulations.

[8.370.25.6
NMAC - N, 7/1/2024]

8.370.25.7
 
DEFINITIONS:
 
For purposes of these regulations the
following shall apply.

A.
 
“Abuse”
 means any act or failure
to act performed intentionally, knowingly or recklessly that causes or is
likely to cause harm to a resident, including:

(1)
 
physical contact that harms or is
likely to harm a resident of a health facility;

(2)
 
inappropriate use of a physical
restraint, isolation, or medication that harms or is likely to harm a resident;

(3)
 
inappropriate use of a physical or
chemical restraint, medication, or isolation as punishment or in conflict with
a physician’s order;

(4)
 
medically inappropriate conduct that
causes or is likely to cause physical harm to a resident;

(5)
 
medically inappropriate conduct that
causes or is likely to cause great psychological harm to a resident;

(6)
 
an unlawful act, a threat or menacing
conduct directed toward a resident that results and might reasonably be
expected to result in fear or emotional or mental distress to a resident.

B.
 
“Exploitation”
 of a resident consists of the act
or process, performed intentionally, knowingly, or recklessly, of using a
resident’s property for another person’s profit, advantage or benefit without
legal entitlement to do so.

C.
 
“Facility”
 means a skilled nursing facility or
nursing facility, or a distinct part of a skilled nursing facility or nursing
facility.

D.
 
“Great psychological harm”
 means psychological
harm that causes mental or emotional incapacitation for a prolonged period of
time or that causes extreme behavioral change or severe physical symptoms that
require psychological or psychiatric care.

E.
 
“Licensed health professional”

means a physician, physician assistant, nurse practitioner, physical, speech,
or occupational therapy assistant, registered professional nurse, licensed
practical nurse, or licensed or certified social worker.

F.
 
“Neglect”
 means subject to the
resident’s right to refuse treatment and subject to the caregiver’s right to
exercise sound medical discretion, the grossly negligent:

(1)
 
failure to provide any treatment,
service, care, medication or item that is necessary to maintain the health or
safety of a resident;

(2)
 
failure to take any reasonable
precaution that is necessary to prevent damage to the health or safety of a
resident;

(3)
 
failure to carry out a duty to
supervise properly or control the provision of any treatment, care, good,
service or medication necessary to maintain the health or safety of a resident.

G.
 
“Nurse aide”
 means any individual
who provides nursing or nursing related services to residents in a facility and
who is not a licensed health professional, a registered dietitian, or someone
who volunteers to provide such services without pay.

H.
 
“Registry”
 means a listing by the
state survey agency of all individuals who have satisfactorily completed a
nurse aide training or competency evaluation program approved by the health
care authority and state survey agency, or who have qualified by reciprocity.

I.
 
“Resident”
 means any person who
resides in a health care facility or who receives treatment from a certified
health care provider.

J.
 
“Survey agency
”
 means the health facility licensing
and certification bureau of the New Mexico health care authority.

[8.370.25.7
NMAC - N, 7/1/2024]

8.370.25.8
 
INVESTIGATION:
 
Following review by the survey agency, all
allegations for which there is reason to believe, either through oral or
written evidence, that the resident has been abused, neglected or exploited
will be investigated.

[8.370.25.8
NMAC - N, 7/1/2024]

8.370.25.9
 
SOURCE OF COMPLAINTS:
 
All complaints received by the survey agency
for which there is reason to believe that the resident has been abused,
neglected or exploited will be investigated regardless of their source.

[8.370.25.9
NMAC - N, 7/1/2024]

8.370.25.10
 
NOTIFICATION:
 
If the survey agency determines, based on
oral or written evidence, that resident abuse, neglect or exploitation
occurred, it shall notify by mail the nurse aide implicated in the
investigation and the administrator of the facility that employs the nurse aide
of the:

A.
 
nature
of the allegation(s);

B.
 
date of the occurrence;

C.
 
right to a hearing;

D.
 
survey
agency’s intent to report the substantiated findings, once the nurse aide has
had the opportunity for a hearing, to the nurse aide registry and other
appropriate licensure authorities;

E.
 
fact that the
nurse aide’s failure to request a hearing in writing within 30 days from the
date of the notice will result in the survey agency reporting the substantiated
findings to the administrator of the facility that employs the nurse aide to
the nurse aide registry.

[8.370.25.10
NMAC - N, 7/1/2024]

8.370.25.11
 
REQUEST FOR HEARING:
 
A nurse aide determined by the survey agency
to have committed abuse, neglect, or exploitation may request an administrative
hearing.
 
The request for a hearing shall
be in writing and mailed or delivered to the New Mexico health care authority as
directed in the notification sent pursuant to 8.370.25.10 NMAC.

[8.370.25.11
NMAC - N, 7/1/2024]

8.370.25.12
 
IMPARTIAL HEARING OFFICER:
 
Upon receipt of a timely request for a
hearing, the secretary of the health care authority or their designee shall
appoint an impartial hearing officer to conduct the hearing and issue a report
and recommended decision.
 
The hearing
officer need not be an attorney.
 
The
hearing officer must not have been involved in any way in the action which is
challenged in the hearing.

[8.370.25.12
NMAC - N, 7/1/2024]

8.370.25.13
 
PARTIES:
 
The parties to a hearing conducted under
these regulations shall be the survey agency and the nurse aide.

[8.370.25.13
NMAC - N, 7/1/2024]

8.370.25.14
 
PRE-HEARING DISCOVERY:

A.
 
Upon written request, the nurse aide who has requested a
hearing shall be entitled to review and copy documents in the survey agency’s
file that are relevant to the challenged action.
 
Documents protected by confidentiality or
privilege, however, shall not be inspected or copied.

B.
 
The parties shall disclose to each other verbally, or in
writing, and to the hearing officer, the names of witnesses to be called and
the general subject matter of their testimony no later than two days prior to
the hearing.
 
No formal depositions shall
be allowed, although if the witnesses do not object, they may be informally
interviewed prior to their testimony.

[8.370.25.14
NMAC - N, 7/1/2024]

8.370.25.15
 
SCHEDULING THE HEARING:

A.
 
The hearing shall take place within 30 days after the
survey agency’s receipt of the request for a hearing.

B.
 
The
survey agency or, if so delegated, the hearing officer shall schedule the
hearing at a place and time reasonably convenient for the nurse aide and shall
provide reasonable notice to the parties and to the administrator of the
facility that employs the nurse aide of the place and time of the hearing.

[8.370.25.15
NMAC - N, 7/1/2024]

8.370.25.16
 
CONDUCT OF HEARING:

A.
 
The hearing officer shall conduct the hearing in public
except when a closed hearing is requested in order to protect confidential
information.

B.
 
The survey agency has the burden of proving, by a
preponderance of the evidence, the existence of the conduct relied upon to take
the challenged action.

C.
 
Testimony shall be under oath and witnesses are subject
to cross examination.

D.
 
The rules of evidence do not apply, however, evidence
shall be admitted if it is the type that a reasonable person would rely on in
the conduct of their affairs.

E.
 
If a nurse aide demonstrates that resident neglect was
caused by factors beyond their control, such showing shall constitute a defense
to the charge of neglect.

F.
 
A record made by audio recording device shall be maintained
with the hearing officer’s file.

[8.370.25.16
NMAC - N, 7/1/2024]

8.370.25.17
 
REPORT AND RECOMMENDATIONS OF HEARING
OFFICER:
 
The hearing officer shall
render and mail a written report and recommended decision within five working
days of the conclusion of the hearing to the secretary of the health care
authority or their designee.
 
The report
shall state the basis of such decision and recommend final action to the
secretary or the designee.
 
The decision
need not contain formal findings of fact or conclusions of law.

[8.370.25.17
NMAC - N, 7/1/2024]

8.370.25.18
 
FINAL DECISION:
 
The secretary, or the designee, shall render
a final determination within 10 days of the submission of the hearing officer’s
report.
 
Parties may be notified
personally, by telephone or by mail of the final order.
 
A copy of the final decision shall be mailed
to each party or attorney of record.

[8.370.25.18
NMAC - N, 7/1/2024]

8.370.25.19
 
REPORT OF FINDINGS:
 
If the secretary, or the designee, finds that
the nurse aide has abused, neglected, or exploited a resident the survey agency
shall report these findings to:

A.
 
the nurse aide;

B.
 
the
administrator of the facility that employs the nurse aide; and

C.
 
the
nurse aide registry.

[8.370.25.19
NMAC - N, 7/1/2024]

8.370.25.20
 
REPORT OF FINDINGS TO THE NURSE AIDE
REGISTRY:
 
Within 10 working days of
the secretary’s, or their designee’s, findings, the survey agency shall report
the following information to the nurse aide registry:

A.
 
the finding made by the secretary, or the designee, as a
result of the hearing;

B.
 
any statement by the nurse aide disputing the finding;

C.
 
that the nurse aide waived the right to a hearing, if
applicable;

D.
 
any failure by the nurse aide to respond to the
allegation.

[8.370.25.20
NMAC - N, 7/1/2024]

8.370.25.21
 
REQUIRED CONTENT OF REGISTRY RECORDS:
 
The survey agency shall retain in accordance
with state of New Mexico recordkeeping requirements:

A.
 
records of occurrence;

B.
 
investigative reports;

C.
 
hearing findings;

D.
 
waiver of hearing rights.

[8.370.25.21
NMAC - N, 7/1/2024]

8.370.25.22
 
APPEAL OF FINAL ACTION:
 
A party may appeal the secretary’s, or their
designee’s, final action to the first judicial district court in Santa Fe
pursuant to Rule 1-075, NMRA within 30 days from the date of the final action.
 
An appeal does not stay the final action.

[8.370.25.22
NMAC - N, 7/1/2024]

8.370.25.23
 
RIGHT TO PETITION THE REMOVAL OF NAME
FROM THE NURSE AIDE REGISTRY IN CASES OF NEGLECT:
 
A nurse aide may petition the health care
authority for the removal of their name from the nurse aide registry in cases
where there was a finding of neglect.
 
Petitions
for removal will not be accepted when the finding was for abuse, physical or
verbal.
 
Such petitions shall be made in
writing and mailed or hand delivered to the health care authority, division of health
improvement, HFL&C bureau chief.
 
The
following procedures apply to nurse aides who petition for the removal of their
name from the nurse aide registry.

A.
 
The nurse aide may petition the authority after one year
from the date that they were placed on the nurse aide registry.
 
In their petition the nurse aide must show
that through their employment and personal history their performance as a nurse
aide does not reflect a pattern of abusive behavior or neglect; and that
neglect involved in the original finding was a singular occurrence.

B.
 
Within 30 days of receipt of a petition the authority
shall set the date for a hearing.
 
Failure
to petition within 30 days from the conclusion of the one year period shall result
in forfeiture of the person’s right to a hearing.
 
Such a request shall be made in writing and
mailed, or hand delivered, and shall be accompanied by a payment of $40.00 or a
sworn statement of indigence on a form provided by the authority.
 
The hearing shall be held in Santa Fe, New
Mexico at the health care authority.

C.
 
In the event that the authority denies the petition, the authority
will notify the nurse aide within 30 days of the reasons for denying the
petition and the nurse aide will continue to be placed on the nurse aide
registry.

D.
 
If
the secretary of the health care authority, or their designee, determines that
the nurse aide does not show a pattern of abusive behavior or neglect, and the
neglect involved was a singular occurrence, the nurse aide shall be placed in
probationary status on the nurse aide registry.

The period of probation will be determined by the secretary, or their designee,
and shall not exceed one year.
 
During
the probationary period the nurse aide must complete necessary training
involving resident’s rights, or other training approved by the health facility
licensing and certification bureau.
 
Upon
successful completion of the probationary period the nurse aide’s certification
will be reinstated, and they will be removed from the nurse aide registry.

[8.370.25.23
NMAC - N, 7/1/2024]

HISTORY OF 8.370.25
NMAC: RESERVED