N.M. Admin. Code § 7.20.12.7

Current through Register Vol. 35, No. 23, December 10, 2024

Section 7.20.12.7 - DEFINITIONS

For the purpose of these regulations the following apply.

A. "Abuse" means any act or failure to act, performed intentionally, knowingly or negligently that causes or is likely to cause harm to a client, including:

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

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

(3) inappropriate use of 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 client;

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

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

(7) abuse or neglect as defined in NMSA 32A-4-2 (1997), or as amended.

B. "Action plan" means a written document submitted by the provider(s) to the licensing and certification authority (LCA) for approval which states those actions that the facility will be implementing, with specific time frames and responsible parties for each, to correct the deficiencies identified in the previous on-site visit or review of documents.

C. "Administrator" means the person in charge of the day-to-day operation of a facility. The administrator, director, or operator may be the licensee or an authorized representative of the licensee. The administrator may also be referred to as the director or operator.

D. "Agency staff personnel" means current and prospective operators, staff, employees or volunteers of the agency.

E. "Ambulatory" means the ability of the child to walk without assistance.

F. "Applicant" means the individual who, or organization which, applies for a license.

G. "Bed" means the total assembly on which a child sleeps, including frame, springs, mattress, mattress cover/pad, sheets, pillow, blankets and bedspread.

H. "Capacity" means the maximum number of children who can be accommodated in rooms designated specifically for them in a facility pursuant to these regulations.

I. "Child/adolescent" means (for the purpose of these regulations), a person under the chronological age of 18 years. Those persons who, while a resident or client of a residential treatment services facility licensed pursuant to these regulations, reach the age of 18 for the purposes of these regulations be considered a child until they complete their course of treatment in the facility.

J. "Cleared staff member" means an individual who has received a state and federal criminal background clearance (meaning a negative criminal record check) as documented by the department clearance letter.

K. "Client" means any person who receives treatment from a residential agency.

L. "Corporal punishment" means touching a child's body with the intent of inducing pain and includes, but not limited to, shaking, spanking, hitting, hair pulling, ear pulling or forced exercise and is considered an abusive act.

M. "Criminal records check" means the process of fingerprinting on state and FBI approved cards and submission of the fingerprint cards for the purpose of obtaining the state and federal conviction records of an individual. The use of the services of an agency contracted by the department of public safety (DPS) who can access the DPS database in order to obtain state criminal background checks for those applicants who have resided in the state of New Mexico for five years or more may be utilized as a means of obtaining state criminal records checks prior to employment. Federal finger printing is still required. The use of an alternate method to obtain state criminal background checks do not replace the federal fingerprinting requirement.

N. "Cruelty (mental or physical) and indifference to the welfare of children" means a failure to provide a child with the care, supervision, and services to which the child is entitled. Examples of physical and mental cruelty include physical device/chemical restraints, striking, slapping or hitting, withholding food or bathroom privileges as punishment, swearing at or threatening a child, and indifference to the basic needs, including physical and psychosocial, of the child and including any abuse as defined in NMSA 1978 32-A-4-2.

O. [RESERVED]

P. "Deficiency" means a violation of or failure to comply with a provision(s) of these regulations.

Q. "Department" means the New Mexico children, youth and families department.

R. "Direct physical supervision" as it relates to criminal records checks means in the line of vision and/or live video observation by cleared agency staff member of non-cleared agency staff members who have direct contact with children.

S. "Direct service staff" means supervisors, therapists, child care workers, coordinators or other employees who work directly with children in their daily living activities in a facility.

T. "Directed action plan" means an action plan that the LCA writes and specifies that the facility must enforce within a specific time frame noted because of the serious nature of the deficiency.

U. "Discipline" means training that enables a child to develop self control and orderly conduct in relationship to peers and adults.

V. "Emergency sanction" means an immediate measure that is imposed on a facility for a violation(s) of applicable licensing laws and regulations, other than license revocation, suspension, denial of renewal of license or loss of certification, when a health and safety violation warrants prompt action.

W. "Emergency service" means unanticipated admission to a hospital or other psychiatric facility; or the provision of emergency services including, but not limited to, treatment for broken bones, cuts requiring sutures, poisoning, contagious diseases requiring quarantine, burns requiring specialized medical treatment, medication under-dose or overdose requiring treatment; or incidents between residents, or between residents and staff resulting in physical or psychological harm or which could result in physical or psychological harm; or other conditions requiring emergency medical services (EMS) specialized treatment at an urgent care center or an emergency room.

X. "Emergency suspension" means an immediate and temporary canceling of a license pending an appeal hearing and/or correction of deficiencies. During a period of suspension, the medicaid provider agreement is not in effect.

Y. "Employment history" means a written summary for the most recent three-year period of all periods of employment with names, addresses and telephone numbers of the employers and the individuals immediate supervisor; and all periods of nonemployment, stating the reason for leaving employment and explanation of periods of nonemployment, with documented verifying references.

Z. "Exploitation" means the act or process, performed intentionally, knowingly, or recklessly, of using a clients property for another persons profit, advantage or benefit without legal entitlement to do so.

AA. "Facility" means a building(s) in which residential mental health services are provided to the public and which is licensed pursuant to these regulations.

BB. "Governing body" means the governing authority of a facility which has the ultimate responsibility for all planning, direction, control, and management of the activities and functions of a facility licensed pursuant to these regulations.

CC. "Informal resolution conference" means an informal process between the department and facility to resolve any filed or potential appeal arising from the imposition of a sanction(s). The informal conference is an opportunity for the facility to present new evidence or arguments regarding the deficiencies cited by, or corrective action proposed by the department, in order to avoid a hearing. The informal conference does not postpone any deadlines for an appeal unless agreed to by the parties.

DD. "License" means the document issued by the LCA pursuant to these regulations granting the legal right to operate for a specified period of time.

EE. "Licensee" means the person(s) who, or organization which, has ownership, leasehold, or similar interest in the facility and in whose name a license for a facility has been issued and who is legally responsible for compliance with these regulations.

FF. "Licensing and certification authority" (LCA) means the childrens behavioral health services bureau, licensing and certification unit of the department.

GG. "Maintenance" means keeping the building(s) in a repaired and safe condition and the grounds in a safe, sanitary and presentable condition.

HH. "Mobile non-ambulatory" means unable to walk without assistance but able to move from place to place with the use of devices such as walkers, crutches, wheelchairs, etc.

II. "Moral turpitude" means conduct contrary to justice, honesty, modesty or good morals including such acts as domestic abuse, drunk driving or other similar convictions.

JJ. "Neglect" means subject to the client's right to refuse treatment and subject to the caregivers right to exercise sound medical discretion. The following apply:

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

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

(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 client; or

(4) any abuse as defined in NMSA 1978 32-A-4-2.

KK. "Non-mobile" means unable to move without assistance from place to place.

LL. "Partial compliance" means that a facility has moderate and few deficiencies and that these do not threaten the health and safety of clients or staff, so that it is able to receive a temporary license with the implementation of certain corrective action(s) within a prescribed time period.

MM. "Physical harm" means harm of a type that causes physical injury resulting in physical trauma to a client (visible injury that requires treatment in excess of primary first aid); loss or functional loss of a bodily member or organ or of a major life activity for a prolonged period of time; or loss of consciousness for any amount of time.

NN. "Policy" means a statement of principle that guides and determines present and future decisions and actions.

OO. "Premises" means all parts of buildings, grounds, vehicles and equipment of a facility.

PP. "Procedure" means the action(s) that will be taken to implement a policy.

QQ. "Programmatic services" means services provided to children to meet special needs above and beyond living accommodations, meals, care, and routine supervision.

RR. "Psychological harm" means harm that causes mental or emotional trauma or that causes behavioral change or physical symptoms that require psychological or psychiatric care.

SS. "Punishment" means a penalty imposed on a child for wrongdoing.

TT. "Residential treatment facility" means a facility that provides 24-hour therapeutic care to children and adolescents and is licensed for no more than 16 children/adolescents. This includes residential treatment centers, group homes, residential substance abuse facilities and other similar facilities.

UU. "Residential treatment" means 24-hour structured therapeutic group living for children and/or adolescents with severe behavioral, neurobiological, or emotional problems when documented history and clinical opinion establish that the needs of the child cannot be met in a less restrictive environment. Children admitted to residential treatment services are either in need of either active psychotherapeutic intervention or require a 24-hour therapeutic group living setting to meet their developmental, social and emotional needs.

VV. "Reduction in licensed capacity" means the reduction of licensed capacity of a residential facility until deficiencies noted by the LCA are corrected.

WW. "Restraint" means a mechanical device used to involuntarily physically restrict a clients freedom of movement, performance of physical activity, or have normal access to his or her body. It is limited to those situations with adequate, appropriate clinical justification and requires policies and procedures with clear criteria. Exception: This standard does not apply to therapeutic holding or comforting of children or to a timeout when the individual to whom it is applied is physically prevented from leaving a room for 15 minutes or less and when its use is consistent with behavior-management protocol.

XX. "Restricted admissions or provision of services" means the restriction of an agency from providing designated services and/or from accepting any new clients until specified deficiencies noted by the LCA are corrected.

YY. "Revocation" means the act of making a license null and void through its cancellation.

ZZ. "Seclusion" means the involuntary confinement of a client alone in a room where the individual is physically prevented from leaving and is limited to those situations with adequate, appropriate clinical justification, requiring policies and procedures with clear criteria.

AAA. "Seclusion room" means a room designed and utilized to isolate and contain a child who poses an imminent threat of physical harm to self or others or serious disruption to the environment.

BBB. "Self-administration of medications" means assistance and supervision of the child in the self-administration of a drug, provided that the medication is in the original container, with a proper label and directions. A staff member may hold the container for the child, assist with opening of the container, and assist the child in self-administering the medication.

CCC. "Serious incident" means an environmental hazard, arrest or detention, or situation that requires emergency services. Environmental hazards include unsafe conditions which create an immediate threat to life or safety, including, but not limited, to fire or contagious diseases requiring quarantine.

DDD. "Staff member" means any person other than the owner, operator or director of a facility who has contact with children in care and includes volunteers, full-time and part-time employees.

EEE. "Stay of sanction" means the department's receipt of the facility's notice of appeal will operate as a stay of suspension, revocation, or sanction. In case of an emergency suspension or emergency sanction neither the immediate five-day hearing nor the facilitys request for a later hearing will stay the department's action.

FFF. "Substantial compliance" means that a facility that is found to be without deficiencies, or with minor and few non-health and safety deficiencies, and is able to receive annual licensure.

GGG. "Substantiated complaint" means a complaint determined to be factual, based on an investigation of events.

HHH. "Supervision" means the monitoring of the children's whereabouts and activities by the facility staff in order to ensure health, safety, and welfare.

III. "Survey" means an entry, by the LCA, into a facility licensed, or required to be licensed, pursuant to these regulations, for examination of the premises and records, and interviewing of staff and children.

JJJ. "Suspension" means a temporary cancellation of a license pending an appeal hearing and/or correction of deficiencies. During a period of suspension, the medicaid provider agreement is not in effect.

KKK. "Treatment plan" means a plan, based on data gathered during the assessment, that identifies the treatment needs of the client being served, lists the strategies to meet those needs, documents measurable treatment goals and objectives, outlines the criteria and time frame for terminating specified interventions, and, when reviewed, documents the clients progress in meeting the specified goals and objectives.

LLL. "U/L approved" means approved for safety by the national underwriters laboratory.

MMM. "Unsubstantiated complaint" means a complaint not determined to be factual based on an investigation of events.

NNN. "Variance" means an act taken, at the sole discretion of the LCA, to refrain from pressing or enforcing compliance with a portion(s) of these regulations for an unspecified period of time for facilities which were in existence at the time these regulations were promulgated, new facilities in existing construction, or for new services when the granting of a variance will not create a danger to the health and welfare of children and staff of a facility.

OOO. "Waive/waiver" means to refrain from pressing or enforcing compliance with a portion(s) of these regulations for a limited period of time provided the health, safety, or welfare of the clients and staff are not in danger. Waivers are issued at the sole discretion of the licensing authority.

N.M. Admin. Code § 7.20.12.7

1/1/99; 7.20.12.7 NMAC - Rn & A, 7 NMAC 20.12.7, 02/28/05