14- 193 C.M.R. ch. 1, § A-VII

Current through 2024-51, December 18, 2024

Section 193-1-A-VII - RIGHT TO DUE PROCESS WITH REGARD TO GRIEVANCES

A. Recipients have the right to due process with regard to grievances.

B. Notwithstanding any other civil or criminal recourse that the person bringing the grievance may have, the facility, agency, and/or Department shall afford every reasonable opportunity for informal resolution of concerns or formal resolution of grievances.

C. Recipients or other persons may bring grievances regarding possible violations of basic rights, including any rights enumerated in these rules and the Settlement Agreement in Bates v. Duby or any other applicable law or regulation; any questionable or inappropriate treatment or method of treatment; or any policy or procedure or action, or lack thereof, of the mental health agency or facility.

D. Persons who may bring grievances include, but are not limited to:

1. The recipient;

2. The recipient's guardian;

3. The recipient's attorney, designated representative or representative of the Office of Advocacy or the rights protection or advocacy agency;

4. Other persons specifically aggrieved.

E. A grievant shall in no way be subject to disciplinary action, reprisal, including reprisal in the form of denial or termination of services, or loss of privileges or service as a result of filing a grievance.

F. Notice

1. Notices summarizing a recipient's right to due process in regard to grievances, including the process by which grievances may be filed, as well as copies of forms to be used for that purpose, shall be available within each program area.

2. An employee of the mental health facility, agency or program shall inform each recipient of this right and the right to be assisted throughout the grievance procedure by a representative of his or her choice, in a manner designed to be comprehensible to the individual recipient. In instances in which the recipient does not understand English or is deaf, this information shall be delivered by an interpreter.

G. Formal Grievances

1. A grievance may be undertaken by a recipient, or a guardian acting on his or her behalf, making a formal written claim that provisions of these rules, the Settlement Agreement in Bates v. Duby or any other applicable law or regulation have been violated by any facility, agency or program.

Grievances regarding the actions of specific employees shall be handled in accordance with personnel rules and contract provisions. No disciplinary action may be taken nor facts found with regard to any alleged employee misconduct except in accordance with applicable personnel rules and labor contract provisions.

2. Formal grievances may be appealed through three sequential levels:

a. The supervisor of the program or unit or the agency employee designated to hear grievances as applicable;

b. For grievances arising in inpatient facilities, the Administrator of the facility; for grievances arising in the community, the Director of the Division of Mental Health; and

c. The Commissioner of the Department.

3. Additional levels of grievance resolution may be added by agency or facility policy, but in no case shall such additional levels add to the overall time allotted for grievance resolution.

4. At each level of the formal grievance procedure the recipient or other grievant shall have rights to the following:

a. Assistance by a representative of the recipient's own choice;

b. Representation by the Office of Advocacy or the rights protection and advocacy agency of the Maine mental health system;

c. Review of any information obtained in the processing of the grievance, except that which would violate the confidentiality of another person;

d. Presentation of evidence or witnesses pertinent to the grievance;

e. Receipt of complete findings and recommendation except those that would violate the confidentiality of another person.

5. An electronic or written record shall be made of all proceedings associated with formal grievances. An electronic recording shall be made of any hearing held pursuant to this section.

6. In all grievances the burden of proof shall be on the agency, facility or program to show compliance, or remedial action to comply with the policies and procedures established to assure the rights of recipients under these rules.

7. Findings shall include:

a. A finding of facts, consistent with the terms of the Maine Administrative Procedure Act;

b. It determination regarding the facility, agency, program or employee adherence, or failure to adhere, to specific policies or procedures designed to assure the rights of recipients under these rules; and,

c. Any specific remedial steps necessary to assure compliance with such policies and procedures.

8. Upon appeal, al1 pertinent information gathered regarding a formal grievance shall be forwarded, by the person to whom the grievance was addressed, to the next responsible official.

9. Steps of Formal Grievances

a. Level One

i. Formal grievances shall be filed first with the supervisor of the service delivery unit in which the grievance arises.

ii. Copies of the grievances shall be forwarded by the supervisor to the administrative head of the mental health facility or agency and, upon the request of the grievant, to the Office of Advocacy. In the case of state operated facilities, all formal grievances shall be immediately forwarded to the Office of Advocacy.

iii. A formal written response shall be made within five days, excluding weekends and holidays.

iv. If the agency staff needs a longer period to investigate the circumstances of the grievance, a five day extension may be made and the grievant so notified.

v. If the grievant is unsatisfied with the findings at the first level, he or she may appeal me decision to; me Chief Administrative Officer of the mental health facility or, for grievances arising in the community, the Director of the Division of Mental Health.

vi. Such an appeal must be made within ten days, excluding weekends and holidays.

vii. Copies of such an appeal shall be forwarded to the Office of Advocacy by the Chief Administrative Officer of the facility or the Director of the Division of Mental Health.

b. Level Two

i. The Chief Administrative Officer or the Director of the Division of Mental Health, as applicable, or designee shall respond to a Level Two grievance within five days, excluding weekends and holidays, of day of receipt of the appeal.

ii. If the Chief Administrative Officer or designee needs a longer period to investigate the circumstances of the grievance, a five day extension may be made with the permission of the parties to such a grievance.

iii. The Chief Administrative Officer or the Director of the Division of Mental Health, as applicable, or designee may, at his or her discretion, hold a hearing before an impartial hearing officer, who shall be an individual free of bias, personal or financial interest, with all parties involved.

iv. If the grievant is dissatisfied with the finding at Level Two, he or she may appeal the decision to Level Three to the Commissioner, Department of Behavioral and Developmental Services, Station 40, Augusta, Maine 04333. Appeals must be made within ten days, excluding weekends and holidays.

c. Level Three

i. The Commissioner or designee shall make a formal written reply within five days, excluding weekends and holidays.

ii. If no hearing was held at Level Two a hearing shall be held at Level Three.

iii. A five day continuance may occur if a hearing is to be held or if the parties to such a grievance concur.

iv. The Commissioner's or designee's finding shall constitute the final action by the Department regarding a grievance.

10. The decision at each level of the grievance procedure shall be final and binding unless the grievant appeals within the indicated time frames.

H. The Commissioner's decision shall constitute final agency action, and the grievant may appeal the decision to Superior Court pursuant to the Maine Administrative Procedure Act, 5 MRSA §11001et seq.

I. Under no circumstances shall the remedies requested in a grievance be denied nor shall the processing of a grievance be refused because of the availability of the complaint procedure.

J. Exceptions

1. Grievances regarding abuse, mistreatment, or exploitation.

a. Any allegation of abuse, mistreatment, or exploitation shall be immediately reported to the Office of Advocacy and to the Chief Administrative Officer of the mental health facility or agency. Any disciplinary actions or findings of fact in these instances shall be consistent with personnel rules and labor agreements.

b. Investigation of any such allegation shall be conducted pursuant to statutory and regulatory standards including those relating to the Child and Family Services and Child Protection Act (22 M.R.S.A. Chapter 1071 s 4001 et seq.) and the Adult Protective Act (22 M.R.S.A. Chapter°958-A) and facility policy approved by the Department.

2. Urgent Grievances

a. Any grievance that the grievant considers urgent shall be forwarded by staff within one working day to the Chief Administrative Officer of the facility or for grievances arising in the community, to the Director of the Division of Mental Health, or designee, at Level Two, and the Office of Advocacy so notified.

Such grievances must be reviewed by the Chief Administrative Officer, the Director or designee, who shall either arrange to hear the grievance -within three working days or immediately refer the grievance to Level 1 for response.

b. All grievances concerning the development, substantive terms, or implementation of ISP'S or hospital treatment and discharge plans shall be considered urgent grievances.

3. Grievances Without Apparent Merit

a. A grievance may be found to be without apparent merit, upon Level Two review, upon the concurrence of the Chief Administrative Office or the Director of the Division of Mental Health, as applicable, and, when the grievance relates to a state mental health institute, the representative of the Office of Advocacy.

b. Any decision that a grievance is without merit and the justification for that decision shall be forwarded to the grievant in writing, and shall include notice of other avenues of redress.

c. Grievances without apparent merit may not be appealed administratively beyond Level Two. This dismissal constitutes final agency action for purposes of judicial review.

14- 193 C.M.R. ch. 1, § A-VII