CHAPTER He-M 200  PRACTICE AND PROCEDURE

 

Statutory Authority:  RSA 135-C:5, I(b); 171-A:19,III; 126-A:5,VIII; 135-C: 13; 135-C:61, XI

 

PART He-M 201  ADMINISTRATIVE REVIEW OF COMPLAINT INVESTIGATION FINDINGS

 

Statutory Authority:  RSA 135-C:5; 61, III, XI, and XII

 

          He-M 201.01  Purpose.  The purpose of these rules is to provide any person employed by a state institution an opportunity to challenge any finding that she or he has abused, neglected or exploited a client.

 

Source.  #4924, eff 8-24-90, EXPIRED 8-24-96

 

New. #6981, eff 4-22-99; ss by #8847, INTERIM, eff 4-16-07, EXPIRED: 10-13-07

 

New.  #9058, eff 1-3-08, EXPIRED: 1-3-16

 

          He-M 201.02  Definitions.  The words and phrases used in these rules shall mean the following:

 

          (a)  “Abuse” means an act or omission by an employee, consultant or volunteer of an institution that:

 

(1)  Is not accidental;

 

(2)  Harms or threatens to harm a client's physical, mental or emotional health or safety; and

 

(3)  Includes emotional abuse, physical abuse, and sexual abuse.

 

          (b)  “Client” means a person receiving services at a state institution.

 

          (c)  “Commissioner” means the commissioner of the department of health and human services.

 

          (d)  “Complaint investigator” means an employee of a state institution who is designated by the commissioner and is responsible for conducting investigations of complaints of alleged rights violations, including investigations of abuse, neglect, or exploitation in accordance with RSA 161-F:46, II and 49, I and II and other rights violations.

 

          (e)  “Department” means the department of health and human services.

 

          (f)  “Emotional abuse” means:

 

(1)  The misuse of power, authority or both;

 

(2)  Verbal harassment; or

 

(3)  Unreasonable confinement that results or could result in mental anguish or emotional distress of a client.

 

          (g)  “Employee” means an employee of a state institution.

 

          (h)  “Exploitation” means:

 

(1)  The use of a client's person or property for another's profit or advantage; or

 

(2)  Breach of a fiduciary relationship through improper use of a client's person or property including situations where a person obtains money, property, or services from a client through undue influence, harassment, duress, deception, or fraud.

 

          (i)  “Finding” means a decision made by a complaint investigator pursuant to He-M 201.03 (c) that an allegation of abuse, neglect, or exploitation of a client by an employee has been substantiated.

 

          (j)  “Incapacitated” means “incapacitated” as defined in RSA 161-F:43, VII.

 

          (k)  “Institution” means New Hampshire hospital or Glencliff home for the elderly.

 

          (l)  “Neglect” means an act of omission that results or could result in the deprivation of essential services necessary to maintain the minimum mental, emotional, or physical health of a client.

 

          (m)  “Physical abuse” means the use of physical force that results or could result in physical injury to a client.

 

          (n)  “Sexual abuse” means contact or interaction of a sexual nature involving a client and an employee of, or a consultant or volunteer for, an institution.

 

Source.  #4924, eff 8-24-90, EXPIRED 8-24-96

 

New. #6981, eff 4-22-99; ss by #8847, INTERIM, eff 4-16-07, EXPIRED: 10-13-07

 

New.  #9058, eff 1-3-08, EXPIRED: 1-3-16

 

          He-M 201.03  Investigation Process.

 

          (a)  As designee of the commissioner, the complaint investigator of each state institution shall investigate any allegation of abuse, neglect, or exploitation of clients of the institution.

 

          (b)  When a complaint investigator has reason to believe that a client might have been abused, neglected, or exploited by an employee, the complaint investigator shall, at a minimum:

 

(1)  Determine whether the allegations are required to be referred to law enforcement for investigation as mandated by RSA 161-F:51, II for cases involving serious bodily injury to an incapacitated adult;

 

(2)  Insure that the guardian, if any, is notified of the allegations, as follows:

 

a.  The guardian of the person of the client shall be notified unless the allegations involve financial exploitation; and

 

b.  If the allegations involve financial exploitation, the guardian of the estate of the client shall be notified;

 

(3)  Interview the complainant, client, and employee and all witnesses regarding the allegations;

 

(4)  Personally inspect the location of the alleged incident(s); and

 

(5)  Review all records, documents and other data that have a bearing on the allegations.

 

          (c)  Following an investigation pursuant to (b) above, the complaint investigator shall:

 

(1)  Evaluate all of the evidence collected;

 

(2)  Determine if the allegation is substantiated by such evidence;

 

(3)  Prepare a report of the investigation that includes:

 

a.  A summary of the allegation;

 

b.  A description of the investigation process;

 

c.  The complaint investigator's findings; and

 

d.  The evidence supporting those findings; and

 

(4)  Determine whether the evidence and findings require that a referral be made to law enforcement for possible prosecution as mandated by RSA 161-F:51, II, for cases of abuse, neglect or exploitation of an incapacitated adult.

 

          (d)  Any employee against whom an allegation of abuse, neglect or exploitation has been made shall be notified of the outcome of the investigation.  Such notification shall be hand delivered to the employee or sent by registered or certified mail, return receipt requested, to the employee at his or her last known address.

 

          (e)  If the complaint investigator concludes that the allegation is substantiated, the notification shall include:

 

(1)  The date of the initial report;

 

(2)  The identity of the alleged victim;

 

(3)  A brief description of the incident, including the type of abuse, neglect, or exploitation that has occurred;

 

(4)  The reasons for substantiating the finding;

 

(5)  Notice of the employee's right to a reconsideration meeting pursuant to He-M 201.04;

 

(6)  Notice of the employee's right to a review hearing pursuant to He-M 201.05 in lieu of or following the reconsideration meeting; and

 

(7)  Notice of the employee's right to be represented by an attorney or other representative during the reconsideration meeting or review hearing, at the employee's own expense.

 

          (f)  If the complaint investigator concludes that the allegation is not substantiated, the notice shall inform the employee that the allegation has not been substantiated.

 

          (g)  The report of an investigation conducted pursuant to He-M 201.03(b) shall be forwarded to the client regarding whom the investigation was made, or to such client's guardian, and to the department’s office of client and legal services.

 

Source.  #4924, eff 8-24-90, EXPIRED 8-24-96

 

New. #6981, eff 4-22-99; ss by #8847, INTERIM, eff 4-16-07, EXPIRED: 10-13-07

 

New.  #9058, eff 1-3-08, EXPIRED: 1-3-16

 

          He-M 201.04  Reconsideration Process.

 

          (a)  An employee against whom a finding is made may request a reconsideration of that finding.  To exercise such right, an employee shall request, in writing, a reconsideration of the decision from the complaint investigator within 10 working days of receipt of notice that an allegation is substantiated.

 

          (b)  Within 5 working days of receipt of a reconsideration request, the complaint investigator and his or her supervisor shall meet with the employee and his or her representative, if any, to discuss any additional information  the employee might have that has a bearing on the finding and to discuss whether information obtained during the investigation supports the finding.  Following this meeting, the supervisor shall determine if there is reason to uphold, reverse, or modify the finding made by the complaint investigator.

 

          (c)  Within 2 working days of the reconsideration meeting held pursuant to (b) above, the complaint investigator's supervisor shall inform the employee in writing of whether the finding has been modified, reversed, or upheld in light of the issues discussed at the reconsideration meeting.  In such reconsideration determination, the supervisor shall notify the employee of his or her right to review the complaint investigator's report if he or she requests a review hearing pursuant to He-M 201.05(a).  This notification shall be hand delivered to the employee or sent by registered or certified mail, return receipt requested, to the employee at his or her last known address.

 

          (d)  A copy of the reconsideration determination shall be forwarded to the client regarding whom the investigation was made, or to such client's guardian, and to the department.

 

          (e)  Following the reconsideration determination, or in lieu of the reconsideration meeting, the employee may request a review hearing to appeal the finding made by the complaint investigator or the reconsideration determination.

 

Source.  #4924, eff 8-24-90, EXPIRED 8-24-96

 

New. #6981, eff 4-22-99; ss by #8847, INTERIM, eff 4-16-07, EXPIRED: 10-13-07

 

New.  #9058, eff 1-3-08, EXPIRED: 1-3-16

 

          He-M 201.05  Hearing Process.

 

          (a)  An employee may request a review hearing to appeal a finding pursuant to He-M 201.03(c) or a reconsideration determination pursuant to He-M 201.04(c).

 

          (b)  The purpose of a review hearing shall be to determine if the finding of abuse, neglect or exploitation is supported by the evidence collected during the investigation.

 

          (c)  Hearing requests and all other hearing related matters shall take place in accordance with He-C 200.

 

Source.  #4924, eff 8-24-90, EXPIRED 8-24-96

 

New. #6981, eff 4-22-99; ss by #8847, INTERIM, eff 4-16-07, EXPIRED: 10-13-07

 

New.  #9058, eff 1-3-08, EXPIRED: 1-3-16

 

PART He-M 202  RIGHTS PROTECTION PROCEDURES FOR DEVELOPMENTAL SERVICES

 

Statutory Authority:  RSA 171-A:14, V; 19, I, III

 

REVISION NOTE:

 

          Document #5830, effective 5-24-94, contains with amendments the rules in former Part He-M 302 which was entitled "Client Rights Protection Procedures" and was repealed by Document #5832, effective 5-26-94.  Document #5830 therefore replaces all prior filings for the sections in former Part He-M 302.  The prior filings for former Part He-M 302 include the following documents:

 

#2710, eff 5-16-84

#2961, eff 1-18-85

#4424, eff 5-27-88

 

         He-M 202.01  Purpose.  The purpose of these rules is to define the procedures for protection of the rights of persons applying for, eligible for, or receiving services from area agencies or developmental services or acquired brain disorder programs funded through the bureau of developmental services.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11

 

         He-M 202.02  Definitions.

 

         (a)  “Abuse” means an act or omission by an employee of, or a contractor, consultant, or volunteer for an area agency or program which is not accidental and harms or is likely to harm an individual’s physical, mental, or emotional health or safety and includes emotional abuse, physical abuse, and sexual abuse.

 

         (b)  “Acquired brain disorder” means a disruption in brain functioning that:

 

(1)  Is not congenital or caused by birth trauma;

 

(2)  Presents a severe and life-long disabling condition which significantly impairs a person’s ability to function in society;

 

(3)  Occurs prior to age 60;

 

(4)  Is attributable to one or more of the following reasons:

 

a.  External trauma to the brain as a result of:

 

1.  A motor vehicle incident;

 

2.  A fall;

 

3.  An assault; or

 

4.  Another related traumatic incident or occurrence;

 

b.  Anoxic or hypoxic injury to the brain such as from:

 

1.  Cardiopulmonary arrest;

 

2.  Carbon monoxide poisoning;

 

3.  Airway obstruction;

 

4.  Hemorrhage; or

 

5.  Near drowning;

 

c.  Infectious diseases such as encephalitis and meningitis;

 

d.  Brain tumor;

 

e.  Intracranial surgery;

 

f.  Cerebrovascular disruption such as a stroke;

 

g.  Toxic exposure; or

 

h.  Other neurological disorders, such as Huntington’s disease or multiple sclerosis, which predominantly affect the central nervous system; and

 

(5)  Is manifested by:

 

a.  Significant decline in cognitive functioning and ability; or

 

b.  Deterioration in:

 

1.  Personality;

 

2.  Impulse control;

 

3.  Judgment;

 

4.  Modulation of mood; or

 

5.  Awareness of deficits.

 

         (c)  “Area agency” means “area agency” as defined under RSA 171-A:2, I-b, namely, “an entity established as a nonprofit corporation in the state of New Hampshire which is established by rules adopted by the commissioner to provide services to developmentally disabled persons in the area.”

 

         (d)  “Bureau” means the bureau of developmental services of the department of health and human services.

 

         (e)  “Bureau administrator” means the chief administrator of the bureau of developmental services.

 

         (f)  “Commissioner” means the commissioner of the department of health and human services or his or her designee.

 

         (g)  “Complaint” means:

 

(1)  Any allegation or assertion that a right of an individual as set forth in He-M 310, rights of persons receiving developmental services or acquired brain disorder services in the community has been violated;

 

(2)  Any allegation or indication that an individual has been abused, neglected, or exploited by an employee of, or a contractor, consultant, or volunteer for an area agency or program; or

 

(3)  Any allegation or assertion that the department or an area agency or program has acted in an illegal or unjust manner with respect to an individual or category of individuals.

 

         (h)  “Complaint investigator” means a person who is designated by the office of client and legal services to investigate and take other appropriate action on complaints.

 

         (i)  “Department” means the department of health and human services.

 

         (j)  “Developmental disability” means “developmental disability” as defined in RSA 171-A:2, V, namely, “a disability:

 

a.  Which is attributable to intellectual disability, cerebral palsy, epilepsy, autism, or a specific learning disability, or any other condition of an individual found to be closely related to an intellectual disability as it refers to general intellectual functioning or impairment in adaptive behavior or requires treatment similar to that required for persons with an intellectual disability; and

 

b.  Which originates before such individual attains age 22, has continued or can be expected to continue indefinitely, and constitutes a severe handicap to such individual's ability to function normally in society.”

 

         (k)  “Emotional abuse” means any of the following when the act results, or is likely to result, in the mental anguish or emotional distress of an individual:

 

(1)  The misuse of power, authority, or both;

 

(2)  Verbal harassment; or

 

(3)  Unreasonable confinement.

 

         (l)  “Exploitation” means the use of an individual's person or property for another's profit or advantage, or breach of a fiduciary relationship through improper use of an individual's person or property, including situations where a person obtains property or services from an individual through undue influence, harassment, duress, deception, or fraud.

 

         (m)  “Founded” means that the facts indicate that a right of an individual under He-M 310 was violated.

 

         (n)  “Guardian” means a person appointed pursuant to RSA 464-A or the parent of an individual under the age of 18 whose parental rights have not been terminated or limited by law.

 

         (o)  “Incident report” means a document used to inform management, supervisory staff, or any other appropriate staff of a program or facility of a serious injury or other event threatening the health or safety of individuals or staff.

 

         (p)  “Individual” means a person with a developmental disability or acquired brain disorder who is applying for, eligible for, or receiving services from an area agency or program.

 

         (q)  “Neglect” means an act or omission which results, or is likely to result, in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional, or physical health of an individual.

 

         (r)  “Office of client and legal services (OCLS)” means the client and legal services section of the department established by RSA 171-A:19 to, in part, assist the commissioner in responding to complaints by or on behalf of persons with developmental disabilities.

 

         (s)  “Physical abuse” means the use of physical force which results, or is likely to result, in physical injury to an individual.

 

         (t)  “Program” means any service that is licensed, certified, funded, monitored, or regulated by the department and supports persons with an acquired brain disorder or a developmental disability.

 

         (u)  “Respondent” means the person, area agency, or program against whom a complaint is made.

 

         (v)  “Rights violation” means a violation of a right enumerated in He-M 310.

 

         (w)  “Sexual abuse” means contact or interaction of a sexual nature between an individual and an employee of, or a contractor, consultant, or volunteer for, an area agency or program.

 

         (x)  “Systemic factors” means internal and external policies and processes that influence the department’s or an area agency’s or program’s operations and effectiveness, including:

 

(1)  Practices regarding hiring, training, and managing employees; 

 

(2)  Practices to assure quality of service and consumer satisfaction;

 

(3)  Practices to assure accurate fiscal management; and

 

(4)  Governmental regulations regarding licensing, funding, and service provision.

 

         (y)  “Unfounded” means that the facts do not indicate that a right of an individual was violated.

 

         (z)  “Unreasonable confinement” means any confinement that is neither medically necessary nor necessary for the protection of a person or to prevent harmful behavior, or confinement used with punitive intent.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11

 

         He-M 202.03  Complaints.

 

         (a)  A complaint may be made by any person including, but not limited to:

 

(1)  An individual;

 

(2)  An individual’s guardian or family member;

 

(3)  An applicant for services; or

 

(4)  An employee of, or a contractor, consultant, or volunteer for the department, an area agency, or a program.

 

         (b)  A person wishing to make a complaint may make the complaint orally or in writing to the OCLS or any employee of an area agency, a program, or the bureau.  Any person receiving a complaint shall promptly forward the complaint to the OCLS.

 

         (c)  When the OCLS or an area agency or program receives an oral complaint, it shall:

 

(1)  Encourage the complainant to submit the complaint in writing;

 

(2)  Put the complaint in writing if the complainant cannot or will not do so; and

 

(3)  Request the complainant to sign the written complaint.

 

         (d)  Neither the OCLS nor any area agency or program shall require a complaint to be submitted on a specified form or in a specified format.

 

         (e)  A complaint may be made anonymously.  If so, the identity of the complainant shall be kept confidential throughout the complaint investigation process.  The complainant may be referenced by name as a witness or in another role in the course of the investigation or in the complaint report, but the fact that he or she acted as the complainant shall not be disclosed without consent.

 

         (f)  No individual shall be subject to any form of harassment or retaliation by any area agency, program, or department employee, contractor, consultant, or volunteer as a result of filing a complaint.

 

         (g)  Except when necessary to protect an individual’s health or safety, an area agency or program shall not discontinue, amend, or otherwise disrupt services provided to an individual as a result of that individual, or a person acting on the individual’s behalf, filing a complaint.

 

         (h)  No employee of, or contractor, consultant, or volunteer for the department or an area agency or program shall be subject to any form of discipline, harassment, or retaliation as a result of filing a complaint.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11 (from He-M 202.04)

 

         He-M 202.04  Responsibility to Complain.

 

         (a)  Employees of the department or an area agency or program shall promptly make a complaint on behalf of an individual whenever they have reason to suspect that an individual has been subjected to abuse, neglect, exploitation, or a rights violation by an employee of, or a contractor, consultant, or volunteer for an area agency or program.

 

         (b)  Persons making a complaint or filing a complaint on behalf of another shall forward the complaint to the OCLS.

 

         (c)  As soon as possible but not later than one business day following receipt, OCLS shall submit a complaint to a complaint investigator and inform the executive director of the appropriate area agency that a complaint was filed. 

 

         (d)  Employees of the department or an area agency or program shall assist persons who wish to file a complaint to contact the OCLS.

 

         (e)  Employees described in (d) above shall inform persons making complaints of the availability of advocacy services from an advocacy agency such as the Disabilities Rights Center or New Hampshire Legal Assistance.

 

         (f)  A complaint investigator shall report a complaint of abuse, neglect, or exploitation of an individual or other person to the bureau of elderly and adult services (BEAS) or division for children, youth and families (DCYF), as appropriate.

 

         (g)  When an employee of the department or an area agency or program has reason to suspect that an individual has been subject to abuse, neglect, exploitation, or a rights violation by a person who is not an employee of, or a contractor, consultant, or volunteer for, that area agency or  program, the employee shall take all practicable steps to protect the individual and immediately report the violation to OCLS.

 

         (h)  Upon receipt of a report pursuant to (g) above, OCLS shall:

 

(1)  Assess the issues presented and actions taken;

 

(2)  Take whatever further action is necessary to safeguard the individual; and

 

(3)  Report an instance of abuse, neglect, or exploitation to BEAS or DCYF, as appropriate.

 

         (i)  Employees of an area agency or program shall file an incident report with the area agency regarding any circumstance that the policy of the area agency or program identifies as an incident including, at a minimum, a serious injury or other event threatening the health or safety of individuals or staff. 

 

         (j)  In the event of the death of an individual where there are or were allegations of abuse, neglect, or exploitation, the area agency or program shall report the allegations to OCLS for investigation.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11 (from He-M 202.06)

 

         He-M 202.05  Informal Resolution.

 

         (a)  At the individual’s option or, if the individual has a guardian, at the option of the guardian, and except in cases of reported abuse, neglect, or exploitation, complaints may be addressed informally pursuant to (e) below by convening a meeting with the appropriate parties or by administrative action by the area agency or program.

 

         (b)  At any time during informal resolution, the individual or, if the individual has a guardian, his or her guardian may request a formal investigation. 

 

         (c)  The complaint investigator shall promptly advise the individual on whose behalf a complaint is filed and his or her guardian and service coordinator of:

 

(1)  All the available rights protection procedures including informal resolution pursuant to (e) below and complaint investigation pursuant to He-M 202.07;

 

(2)  The individual’s right at any time to pursue a formal investigation if informal resolution efforts do not address the issue in a manner deemed satisfactory by the individual or guardian; and

 

(3)  The individual’s right, at his or her expense, to have the assistance of an advocate such as the Disabilities Rights Center or New Hampshire Legal Assistance.

 

         (d)  The individual or, if the individual has a guardian, his or her guardian shall provide to the complaint investigator, within 2 business days, an indication of whether he or she prefers informal resolution or an investigation.  The complaint investigator shall investigate the complaint pursuant to He-M 202.07 if he or she is not contacted by the individual or guardian.

 

         (e)  When an individual or, if the individual has a guardian, his or her guardian chooses the informal resolution option:

 

(1)  The complaint investigator shall notify the appropriate area agency of the choice;

 

(2)  The area agency shall designate a person to facilitate the resolution within 2 business days;

 

(3)  The area agency designee shall:

 

a.  Attempt to resolve the complaint within 15 business days; and

 

b.  Notify the complaint investigator, in writing, of the status of the complaint upon resolution or at the end of the 15 business days, whichever is earlier;

 

(4)  Upon notice pursuant to (3) b. above, the complaint investigator shall contact the individual or his or her guardian to determine the individual’s satisfaction with the outcome;

 

(5)  If the complaint has been resolved, no further action shall be required; and

 

(6)  If the complaint has not been resolved, the complaint investigator shall conduct an investigation.

 

         (f)  A guardian shall be involved in a complaint only if he or she has authority over the particular matter which is the subject of the complaint, as identified in the letter of guardianship issued pursuant to RSA 464-A:11.

 

         (g)  Within the limitations of (f) above, a guardian shall:

 

(1)  Have authority to do the following on behalf of his or her ward:

 

a.  Make a complaint;

 

b.  Pursue informal resolution;

 

c.  Withdraw a complaint; or

 

d.  Pursue an appeal pursuant to He-M 202.08; and

 

(2)  Consider the preferences of the ward to the extent that the guardian deems appropriate.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11

 

         He-M 202.06  Emergency Action.

 

         (a)  Area agencies and programs shall take emergency action on all complaints when there exists an act or circumstance that, if not promptly corrected or resolved, will likely result in serious harm to the individual, other persons, or property.

 

         (b)  An area agency or program shall immediately take steps to protect the safety of the individuals involved.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11 (from He-M 202.09)

 

         He-M 202.07  Complaint Investigation.

 

         (a)  The OCLS shall at all times have 3 persons designated as complaint investigators, or more if needed to carry out all the duties of the complaint investigator within the timelines required by He-M 202.

 

         (b)  Complaint investigators shall not serve as employees of, or contractors, consultants, or volunteers for an area agency or program.  This requirement shall not restrict complaint investigators from providing, by short-term contract, training on rights under He-M 310, the complaint process, or related subjects to staff of programs or area agencies.

 

         (c)  Following receipt from the department, each area agency shall annually forward to programs and family groups the procedures and contact information for filing a complaint.

 

         (d)  Area agencies and programs shall post the information identified in (c) above within area agency and program offices and on web sites, as applicable.

 

         (e)  At each individual’s annual service planning meeting, the service coordinator shall provide, in writing, to the individual, guardian, and family the procedures and contact information for filing a complaint.

 

         (f)  OCLS shall submit all complaints to a complaint investigator as soon as possible but not later than one business day following receipt.

 

         (g)  Complaints involving abuse, neglect, or exploitation shall be investigated prior to any other complaints.  Such other complaints shall be investigated in the order in which they are received. 

 

         (h)  The complaint investigator shall investigate and attempt to resolve the complaint to the satisfaction of the individual or his or her guardian within 15 business days.

 

         (i)  The complaint investigator shall conduct an impartial and thorough investigation that includes, at a minimum:

 

(1)  Interviewing:

 

a.  The complainant;

 

b.  The individual;

 

c.  The guardian, if any;

 

d.  The respondent; and

 

e.  Any witnesses to any incident on which the complaint is based;

 

(2)  As deemed relevant by the complaint investigator, consulting with professionals or other persons who have knowledge of the individuals involved;

 

(3)  Reviewing information in the individual's record, program policies and procedures, and any other documents that have been determined by the investigator to be relevant;

 

(4)  Reviewing relevant systemic factors; and

 

(5)  Reviewing any physical evidence.

 

         (j)  Area agencies and programs shall allow complaint investigators:

 

(1)  Unfettered access to program premises, staff, training records, files of individuals who are the subjects of complaints; and

 

(2)  Access to any other program documents or information determined relevant by the complaint investigator, unless otherwise restricted by law.

 

         (k)  During the complaint process, the complaint investigator shall keep the area agency executive director or his or her designee informed of the progress of the investigation.

 

         (l)  The respondent may be represented by counsel during the interview conducted by the complaint investigator.  However, the complaint investigator shall not share an individual’s confidential information with the respondent or the respondent’s attorney without the permission of the individual or his or her guardian.

 

         (m)  Regardless of the number of individuals affected, 2 or more complaints involving the same act or incident shall be consolidated and treated as one complaint, provided that:

 

(1)  Separate notices and copies of resolutions shall be sent to each individual or his or her guardian; and

 

(2)  Each individual, or his or her guardian, shall be given the opportunity to accept or appeal such resolution.

 

         (n)  The complaint investigator shall prepare a report for OCLS review that includes:

 

(1)  A summary of the issues presented, including any issues that arose during the investigation;

 

(2)  The names of persons interviewed during the investigation;

 

(3)  A list of all documents and other evidence reviewed;

 

(4)  The dates of any reports made to BEAS or DCYF, if applicable;

 

(5)  Investigatory findings of fact;

 

(6)  A discussion of the investigatory findings of fact, a proposed determination of whether the allegations are founded or unfounded, and an explanation of why such determination was made;

 

(7)  A discussion of systemic factors that caused, contributed to, or exacerbated the violation; and

 

(8)  The proposed resolution and, as applicable, the proposed corrective action by the area agency, program, or bureau.

 

         (o)  Following OCLS review to determine that the elements in (n) (1)-(8) above have been addressed and within 15 business days of the filing of the complaint, the complaint investigator shall forward the full report to the individual or his or her guardian, the area agency executive director, and the program involved, if any.

 

         (p)  To protect the confidentiality of individuals, witnesses, and accused parties, an area agency or program shall limit access to complaint reports to its management staff and officers of its board of directors and shall not release reports to outside entities.  Reports shall not be made part of an individual’s record. 

 

         (q)  The timeframe in (o) above shall be extended for 10 business days if any of the following factors makes it impossible to issue a report as required:

 

(1)  The number of allegations to be investigated;

 

(2)  The number or availability of witnesses to be contacted;

 

(3)  The availability of evidence; or

 

(4)  Other similar complicating circumstances.

 

         (r)  If the individual or his or her guardian, the area agency executive director, and the program involved, if any, accept the proposed determination or proposed resolution, the report shall be final.

 

         (s)  If the individual or his or her guardian, the area agency executive director, or the program involved, if any, does not accept the proposed determination or proposed resolution, such party shall, within 10 business days, request further investigation by the complaint investigator or further review by the bureau administrator by stating, in writing, and submitting to the bureau the specific reasons for the disagreement.

 

         (t)  If further investigation is requested pursuant to (s) above, the requesting party shall specify, in writing, the areas of concern and the complaint investigator shall review all relevant materials and amend the report as needed.

 

         (u)  If further review by the bureau administrator is requested pursuant to (r) above, the requesting party shall specify, in writing, the areas of concern and the bureau administrator shall review all relevant materials prior to issuing a decision pursuant to (v) below.

 

         (v)  The bureau administrator shall issue a final written decision to the individual or his or her guardian, the area agency executive director, and the program involved, if any, within 10 business days of a request pursuant to (s) above and notify the parties of the right to appeal to the commissioner pursuant to He-C 200.

 

         (w)  Once a complaint report is final pursuant to (r) or (v) above, if the report includes recommendations for resolution that require area agency, program, or bureau action, such action shall be taken within 20 business days of the date of the final report, unless a shorter timeline is specified.  The area agency or program shall send written documentation of such actions to the complaint investigator and the bureau upon completion.  The bureau shall follow-up as needed to ensure implementation of the actions.

 

         (x)  An area agency may conduct its own investigation of a complaint.  Such an investigation shall not commence until an OCLS complaint report is final.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11

 

         He-M 202.08  Appeal.

 

         (a)  Within 30 days of receipt of a final determination pursuant to He-M 202.07 (v), or determinations concerning eligibility termination or suspension of services pursuant to He-M 503 or He-M 522, an individual, applicant, or guardian may appeal in accordance with He-C 200.

 

         (b)  Appeals shall be forwarded, in writing, to the OCLS.  The OCLS shall immediately forward each appeal to the department’s administrative appeals unit which shall assign a presiding officer to conduct a hearing or independent review, as provided in He-C 200. 

 

         (c)  The presiding officer conducting the hearing or review for the administrative appeals unit shall issue final decisions on behalf of the commissioner.

 

         (d)  Nothing in He-M 202.08 shall limit an individual’s right to appeal decisions under He-M 503 or other department rules.

 

         (e)  The burden of proof in appeals shall be determined in accordance with He-C 203.14.

 

         (f)  In appeals of decisions under He-M 202.07 (v), the presiding officer shall forward the decision to the bureau administrator, who shall issue orders related to corrective action as is necessary to bring the area agency or program into compliance with department rules.

 

         (g)  Parties regarding whom corrective action is ordered pursuant to (f) above shall take such action within 20 days of the order unless a shorter timeframe is specified by the bureau administrator.

 

         (h)  Except as provided in He-M 310, an award of money damages shall not be made.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; amd by #8186, eff 10-2-04; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11

 

          He-M 202.09  Complaint Investigator Training and Data Collection.

 

         (a)  A complaint investigator shall have, at a minimum:

 

(1)  A bachelor’s degree from an accredited college in social work, sociology, psychology, human services, related behavioral services, or criminal justice and experience in performing complaint investigations totaling 2 years or more; or

 

(2)  Experience in developmental disabilities in New Hampshire totaling 3 years or more in an area such as:

 

a.  Service coordination;

 

b.  Program management; or

 

c.  Quality assurance.

 

         (b)  Each complaint investigator shall participate in in-service training offered by the department. The OCLS shall train each newly hired complaint investigator and schedule annual training to occur for all complaint investigators.

 

         (c)  The training required by (b) above shall consist of:

 

(1)  Reviewing investigatory procedures and methods;

 

(2)  Investigation report writing;

 

(3)  Rights;

 

(4)  Options for complaint resolution;

 

(5)  Advocacy resources; and

 

(6)  Related topics.

 

         (d)  Participants shall sign in at the time of training as verification of attendance.

 

         (e)  The OCLS shall maintain a list of those who have completed complaint investigator in-service training.

 

         (f)  A newly hired complaint investigator without experience in investigating cases of abuse, neglect, and exploitation or rights violations shall:

 

(1)  First observe an experienced complaint investigator over the course of 2 investigations;

 

(2) Then be observed by an experienced complaint investigator while performing 2 investigations; and

 

(3)  Be determined, as judged by the experienced investigator, to be capable of performing independently.

 

         (g)  A complaint investigator shall investigate an allegation of abuse, neglect, exploitation, or a rights violation only after the investigator has received training identified in (b) and (f) above.

 

         (h)  Complaint investigators shall meet quarterly with OCLS to review cases and discuss issues, concerns, and possible resolutions.

 

         (i)  On a semi-annual basis, the OCLS shall compile data collected from complaint investigators into a report that contains:

 

(1)  The number of complaints filed;

 

(2)  The types of complaints, such as abuse, neglect, exploitation, service availability, or quality of care;

 

(3)  Identification of the complaints as founded or unfounded; and

 

(4)  Any trends or systemic factors identified in the process of complaint investigation.

 

         (j)  OCLS shall send the report prepared pursuant to (i) above to:

 

(1)  The bureau administrator;

 

(2)  The area agency executive directors;

 

(3)  The human rights committees established pursuant to RSA 171-A:17, I; and

 

(4)  The Developmental Services Quality Council established pursuant to RSA 171-A:33.

 

         (k)  The OCLS shall solicit feedback on the report from the Developmental Services Quality Council and use this information to improve complaint investigator training, the investigatory process, and quality of services.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11

 

         He-M 202.10  Waivers.

 

         (a)  A area agency or program may request a waiver of specific procedures outlined in He-M 202 using the form titled “NH Bureau of Developmental Services Waiver Request.”

 

         (b)  The entity requesting a waiver shall:

 

(1)  Complete the form entitled “NH Bureau of Developmental Services Waiver Request” (September 2013 edition); and

 

(2) Include a signature from the individual(s) or legal guardian(s) indicating agreement with the request and the area agency’s executive director or designee recommending approval of the waiver.

 

         (c)  All information entered on the forms described in (b) above shall be typewritten or otherwise legibly written.

 

         (d)  No provision or procedure prescribed by statute shall be waived.

 

         (e)  The request for a waiver shall be granted by the commissioner or his or her designee within 30 days if the alternative proposed by the requesting entity meets the objective or intent of the rule and it:

 

(1)  Does not negatively impact the health or safety of the individual(s);

 

(2)  Does not affect the quality of services to individuals; and

 

(3)  Does not interfere with the procedural or substantive rights afforded an individual under He-M 202, He-M 310, and RSA 171-A:14, 15, and 29.

 

         (f)  The determination on the request for a waiver shall be made within 30 days of the receipt of the request.

 

         (g)  Upon receipt of approval of a waiver request, the program’s or area agency’s subsequent compliance with the alternative provisions or procedures approved in the waiver shall be considered compliance with the rule for which waiver was sought.

 

         (h)  Waivers shall be granted in writing for a specific duration not to exceed 5 years except as in (i) below.

 

         (i)  Any waiver shall end with the closure of the related program or service.

 

         (j)  An area agency or program may request a renewal of a waiver from the bureau.  Such request shall be made at least 90 days prior to the expiration of a current waiver.

 

         (k)  A request for renewal of a waiver shall be approved in accordance with the criteria specified in(e) above.

 

Source.  (See Revision Note at part heading for He-M 202) #5830, eff 5-24-94, EXPIRED: 5-24-00

 

New.  #7730, eff 7-24-02; ss by #9754, INTERIM, eff 7-24-10, EXPIRED: 1-20-11

 

New.  #9962, eff 8-15-11

 

PART He-M 203  COMPLAINT RESOLUTION PROCEDURES FOR FAMILY-CENTERED EARLY SUPPORTS AND SERVICES

 

Statutory Authority: RSA 171-A:14, V; Part C of Public Law 108-446, Individuals with Disabilities Education Improvement Act (IDIEA) of 2004 (20 U.S.C. 1400 et seq.)

 

          He-M 203.01  Purpose.  The purpose of these rules is to define the procedures for the lead agency for Part C of IDEIA for the resolution of complaints asserting a violation of the rights of families, including infants and toddlers with disabilities, applying for or receiving family-centered early supports and services pursuant to He-M 510.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09; ss by #10324, eff 4-26-13

 

          He-M 203.02  Definitions.  The words and phrases used in these rules shall have the following meanings:

 

          (a)  “Applicant” means any person under the age of 3 whose parent requests services pursuant to He-M 510.06.

 

          (b)  “Area agency” means “area agency” as defined in RSA 171-A:2, I-b, namely, “an entity established as a nonprofit corporation in the state of New Hampshire which is established by rules adopted by the commissioner to provide services to developmentally disabled persons in the area.”

 

          (c)  “Bureau” means the bureau of developmental services of the NH department of health and human services.

 

          (d)  “Bureau administrator” means the chief administrator of the bureau.

 

          (e)  “Child” means an infant or toddler with a disability who is under 3 years of age and:

 

(1)  Is at risk for, or has a developmental delay;

 

(2)  Exhibits atypical behavior; or

 

(3)  Has an established condition.

 

          (f)  “Commissioner” means the commissioner of the NH department of health and human services or his or her designee.

 

          (g)  “Complainant” means a parent, family, individual or organization that makes a complaint in accordance with He-M 203.04 or He-M 203.11.

 

          (h)  “Department” means the New Hampshire department of health and human services.

 

          (i)  “Established condition” means that a child has a diagnosed physical or mental condition that has a high probability of resulting in a developmental delay, even if no delay exists at the time of referral, as documented by the family and personnel listed in He-M 510.11 (b)(1), including, at a minimum, conditions such as:

 

(1)  Chromosomal anomaly or genetic disorder;

 

(2)  An inborn metabolic fault;

 

(3)  A congenital malformation;

 

(4)  A severe infectious disease;

 

(5)  A neurological disorder;

 

(6)  A sensory impairment;

 

(7)  A severe attachment disorder;

 

(8)  Fetal alcohol spectrum disorder;

 

(9)  Lead poisoning; or

 

(10)  Developmental delay secondary to severe toxic exposure.

 

          (j)  “Family-centered early supports and services (FCESS)” means a wide range of activities and assistance, based on peer reviewed research to the extent practicable, that develops and maximizes the family’s and other caregivers’ ability to care for the child and to meet his or her needs in a flexible manner and that includes:

 

(1)  Information;

 

(2)  Training;

 

(3)  Special instruction;

 

(4)  Evaluation;

 

(5)  Therapeutic interventions;

 

(6)  Financial assistance;

 

(7)  Materials and equipment;

 

(8)  Emotional support; and

 

(9)  Any other services in He-M 510.03(a)-(v).

 

          (k)  “Family-centered early supports and services (FCESS) program” means a program under contract with the department to provide FCESS as defined by He-M 510.

 

          (l)  “Foster parent” means a person with whom a child lives and who is licensed pursuant to He-C 6446 and certified pursuant to He-C 6347.

 

          (m)  “Impartial person” means someone who:

 

(1)  Is not an employee of any agency or other entity that:

 

a.  Is involved in the provision of early supports and services;

 

b.  Provides care for children; or

 

c.  Provides care for applicants;

 

(2)  Does not have a personal or professional interest that would conflict with his or her objectivity in hearing a complaint brought under these rules; and 

 

(3)  Is not considered to have a conflict solely because the person is paid by the department to implement the He-M 203 complaint resolution process.

 

          (n)  “Informed decision” means “informed decision” as defined in RSA 171-A:2, XI, namely, “a choice made by a client or potential client or, where appropriate, his legal guardian that is reasonably certain to have been made subsequent to a rational consideration on his part of the advantages and disadvantages of each course of action open to him.”

 

          (o)  “Mediator” means an impartial person who:

 

(1)  Is qualified through completion of a mediation training course from an organization that provides such training or who has at least 5 years’ experience as a mediator;

 

(2)  Is knowledgeable in the laws and regulations relating to the provision of early supports and services;

 

(3)  Is not an employee of the department or any agency or other entity involved in the dispute to be mediated; and

 

(4)  Is selected on a random, rotational, or other impartial basis.

 

          (p)  “Parent” means:

 

(1)  A biological or adoptive parent of a child; or

 

(2)  As identified in a judicial decree or when the biological or adoptive parent does not have legal authority to make educational or FCESS decisions on behalf of the child:

 

a.  A guardian authorized to act as the child’s parent, or authorized to make early intervention, educational, health, or developmental decisions for the child, but not the state if the child is in the custody of the New Hampshire division for children, youth, and families;

 

b.  A foster parent as defined in (k) above;

 

c.  An individual acting in the place of a biological or adoptive parent, including a grandparent, stepparent, or other relative with whom the child lives;

 

d.  A surrogate parent as defined in He-M 510.02 (am); or

 

e.  Any other individual who is legally responsible for the child’s welfare.

 

          (q)  “Part C of the IDEIA” means Part C of Public Law 108-446, Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. 1400 et seq.

 

          (r)  “Provider” means a person receiving any form of remuneration for the provision of services to a child or applicant.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09; ss by #10324, eff 4-26-13

 

          He-M 203.03  Informal Resolutions.  At the option of the parent, concerns regarding FCESS may be addressed informally.  However, at any time during informal resolution the family may make a complaint under He-M 203 or any other applicable administrative rule, state statute, or federal regulation.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09 (from He-M 203.09); ss by #10324, eff 4-26-13

 

          He-M 203.04  Resolution of Individual Child ComplaintsMediation.

 

          (a)  A parent may request mediation, in writing, involving any matter under He-M 510 or He-M 203.

 

          (b)  If a parent is unable to make a request in writing, an agency or department employee receiving a complaint shall document the complaint in writing and seek to have the complaint signed by the complainant.

 

          (c)  Requests for mediation shall be submitted, in writing, to the bureau.

 

          (d)  Mediation shall be voluntary and not be used to deny or delay a parent’s right to an impartial due process hearing under He-M 203.05, Part C of IDEIA, or He-M 510.

 

          (e)  Within 10 days of a request for mediation, the mediator shall convene a session with the family and an area agency representative, at a location that is convenient to the family, to which each party may bring 3 participants.

 

          (f)  An agreement shall be to the satisfaction of all parties to the dispute and not in conflict with state or federal law, rule, or policy.

 

          (g)  The mediator shall record in writing any agreement reached during a mediation session and include:

 

(1)  A description of the resolution; and

 

(2)  A statement describing the requirements of (j) below.

 

          (h)  All parties shall sign the written agreement.

 

          (i)  The mediator shall provide all parties with a copy of the written agreement.

 

          (j)  Discussions that occur during the mediation process shall be held confidential and not be used as evidence in any subsequent impartial due process hearings or civil proceedings.

 

          (k)  If resolution is reached during mediation, the written agreement shall be legally binding and enforceable in a state court of competent jurisdiction or in a U.S. district court.

 

          (l)  Parents may simultaneously file a written request for mediation and for an impartial due process hearing.  If an agreement is reached in mediation, the due process hearing shall be cancelled.

 

          (m)  Mediation shall be completed within 30 days of the receipt of a request for mediation.

 

          (n)  The implementation of all procedural safeguards, including mediation, shall be carried out at the expense of the bureau.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08 EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09 (from He-M 203.10); ss by #10324, eff 4-26-13

 

          He-M 203.05  Resolution of Individual Child Complaints – Requesting an Impartial Due Process Hearing.

 

          (a)  A parent may request an impartial due process hearing to address a complaint related to the identification, evaluation, or provision of appropriate early supports and services for his or her child.

 

          (b)  The complaint described in (a) above shall allege a violation that occurred not more than one year prior to the date that the complaint is received.

 

          (c)  Mediation, pursuant to He-M 203.04, shall be made available to the parent whenever an impartial due process hearing is requested.

 

          (d)  Parents shall submit requests for an impartial due process hearing to address a complaint, in writing, to the bureau and send a copy to the FCESS program and area agency.

 

          (e)  If a parent is unable to make a request in writing, the agency or department employee receiving a complaint shall document the complaint in writing and seek to have the complaint signed by the complainant.

 

          (f)  The written request in (d)-(e) above shall include:

 

(1)  The child’s name and home address;

 

(2)  The name of the provider or FCESS program serving the child;

 

(3)  A statement identifying the points of disagreement related to the identification, evaluation, or provision of appropriate FCESS to the child or the family;

 

(4)  A proposed resolution to the disagreement;

 

(5)  The signature of the person submitting the complaint; and

 

(6)  The date of the complaint.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09 (from He-M 202.03); ss by #10324, eff 4-26-13

 

          He-M 203.06  Status of a Child During Proceedings.

 

          (a)  During the pendency of any proceeding involving a complaint under He-M 203 the child shall continue to receive the FCESS currently being provided unless the area agency and the parents of the child otherwise agree.

 

          (b)  If the complaint involves an initial application for FCESS, the child shall receive those services that are not in dispute.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09 (from He-M 203.08); ss by #10324, eff 4-26-13

 

          He-M 203.07  Appointment of Impartial Person.

 

          (a)  An impartial person shall be appointed by the commissioner to hear matters brought under He-M 203.05.

 

          (b)  That impartial person shall:

 

(1)  Have knowledge of the provisions of Part C of the IDEIA;

 

(2)  Have knowledge of the needs of, and services available for, children and their families as set out in He-M 510 and of their other rights as set out in He-M 203 and pursuant to state law and federal regulation; and

 

(3)  Include, but not be limited to, presiding officers as defined in RSA 541-A:1, XIV and mediators as defined in He-M 203.02 (o).

 

          (c)  The impartial person appointed to hear matters brought under He-M 203.05 shall:

 

(1)  Listen to the presentation of relevant viewpoints about the complaint;

 

(2)  Examine all information relevant to the issues;

 

(3)  Reach and issue a written decision on the complaint within 30 days of the date of the complaint; and

 

(4)  Provide for a verbatim tape recorded or written record of the proceedings.

 

          (d)  In the written decision, the impartial person shall require the area agency to implement the resolution of the complaint consistent with the contract between the department and the area agency, He-M 203, other administrative rules, state statute, and Part C of the IDEIA, as applicable.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09 (from He-M 203.04); ss by #10324, eff 4-26-13

 

          He-M 203.08  Parent’s Rights in Due Process Hearings for Resolving Individual Child Complaints.  Any parent involved in a due process hearing under He-M 203.05 may:

 

          (a)  Be accompanied and advised by counsel and by individuals with special knowledge or training with respect to family-centered early supports and services for children, at his or her own expense;

 

          (b)  Compel the attendance of witnesses;

 

          (c)  Present evidence, confront, and cross-examine witnesses;

 

          (d)  Prohibit the introduction of any evidence at the proceedings that has not been disclosed to the parent at least 5 days before the hearings;

 

          (e)  Obtain a written or electronic verbatim transcription of the hearings at no cost to the parent; and

 

          (f)  Receive written findings of fact and decisions from the impartial person within 30 days of the date of the complaint, at no cost to the parent.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09 (from He-M 203.05); ss by #10324, eff 4-26-13

 

          He-M 203.09  Due Process Hearing Scheduling and Timelines.

 

          (a)  Any due process hearings brought pursuant to He-M 203 shall be held at a time and place convenient to the parent.

 

          (b)  The impartial person shall, no later than 30 days after the initial receipt of a parent’s complaint under He-M 203.05, complete the due process hearing and issue and mail a written decision to each of the parties.

 

          (c)  The impartial person may grant specific extensions of time beyond the period set out in (b) above at the request of either party.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09; ss by #10324, eff 4-26-13

 

          He-M 203.10  Civil Action.  Any party aggrieved by the findings and decisions of the appointed impartial person in the due process proceedings as set out in He-M 203.03 through He-M 203.08 may immediately bring a civil action in state or federal court under § 639 (a) (1) of the IDEIA.

 

Source.  #5744, eff 12-1-93; ss by #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED: 10-19-08

 

New.  #9593, eff 11-11-09 (from He-M 203.07); ss by #10324, eff 4-26-13

 

          He-M 203.11  State Administrative Complaints.

 

          (a)  A parent, family, individual, or organization may forward a signed, written complaint that the department, an area agency, FCESS program, or provider is violating or has violated Part C of IDEIA requirements to the bureau and the FCESS provider agency.

 

          (b)  A written, signed complaint shall include:

 

(1)  A statement that the department, area agency, FCESS program, or provider has violated Part C of IDEIA requirements;

 

(2)  The facts on which the complaint is based;

 

(3)  The contact information for the complainant; and

 

(4)  If alleging violations with respect to a specific child:

 

a.  The name and address of the child;

 

b.  The name of the area agency, FCESS program, or provider serving the child;

 

c.  A description of the nature of the problem, including facts relating to the problem; and

 

d.  A proposed resolution of the problem, to the extent known and available to the party at the time the complaint was filed.

 

          (c)  The alleged violation shall have occurred not more than one year before the date that the complaint is received by the bureau administrator unless:

 

(1)  The alleged violation continues for that child or other children; or

 

(2)  The complainant is requesting reimbursement or corrective action for a violation that occurred not more than 3 years before the date on which the complaint is received by the bureau administrator.

 

          (d)  Within 60 days of receipt of the complaint, the bureau administrator or his or her designee shall:

 

(1)  Carry out an independent on-site investigation;

 

(2)  Give the complainant the opportunity to submit additional information, either orally or in writing, about the allegations in the complaint;

 

(3)  Provide the area agency, FCESS program, or provider with an opportunity to respond to the complaint including a proposal to resolve the complaint;

 

(4)  Review all relevant information and make an independent determination as to whether the area agency, FCESS program, or provider is violating a requirement of Part C of the IDEIA;

 

(5)  Provide the opportunity for a parent who has filed a complaint and the area agency, FCESS program, or provider to voluntarily engage in mediation consistent with He-M 203.04; and

 

(6)  Issue a written decision to the complainant that addresses each allegation in the complaint and contains:

 

a.  Findings of fact and conclusions;

 

b.  The reasons for the department's final decision; and

 

c.  Procedures for effective implementation of the final decision, if needed, including technical assistance activities, negotiations, and corrective actions to achieve compliance.

 

          (e)  A 60 day extension of the time limit under (d) above shall be authorized by the bureau administrator or his or her designee, pursuant to Part C of the IDEIA, if:

 

(1)  The case involves complex issues such that the investigation cannot be completed within the 60 days allowed under (d) above; or

 

(2)  The parties involved agree to extend the time to engage in mediation under He-M 203.04.

 

          (f)  If a written complaint is received that is also the subject of a due process hearing, or contains multiple issues, of which one or more are part of that hearing, the department shall set aside any part of the complaint that is being addressed in the due process hearing until the conclusion of the hearing.  However, any issue in the complaint that is not a part of the due process action shall be solved within the 60-calendar-day timeline using the complaint procedures described above.

 

          (g)  If an issue is raised in a complaint that has been previously decided in a due process hearing involving the same parties:

 

(1)  The due process hearing decision shall be binding on that issue; and

 

(2)  The department shall inform the complainant to that effect.

 

          (h)  A complaint alleging an area agency’s, FCESS program’s, or provider’s failure to implement a due process decision shall be resolved by the department.

 

Source.  #6727, eff 4-1-98; ss by #7233, eff 4-22-00; ss by #9135, INTERIM, eff 4-22-08, EXPIRED 10-19-08

 

New.  #9593, eff 11-11-09; ss by #10324, eff 4-26-13

 

          He-M 203.12  Notice of Procedural Safeguards.  Parents and other interested individuals and organizations shall be informed by the department about the complaint procedures described in He-M 203 at a minimum by way of printing and distribution of the “Know Your Rights” handbook, as approved by the United States Office of Special Education Programs, pursuant to Part C of the IDEIA, to:

 

          (a)  Area agencies;

 

          (b)  FCESS programs and providers;

 

          (c)  Parents;

 

          (d)  The Parent Information Center;

 

          (e)  The Disabilities Rights Center, Inc.; and

 

          (f)  Other interested parties.

 

Source.  #10324, eff 4-26-13

 

PART He-M 204  RIGHTS PROTECTION PROCEDURES FOR MENTAL HEALTH SERVICES

 

REVISION NOTE:

 

          Document #5868, effective 7-15-94, adopted He-M 204.  This part included with amendments the rules in former Part He-M 308, which had expired 9-25-93.  The prior filing for former Part He-M 308 was Document #4312, effective 9-25-87.

 

          He-M 204.01  Purpose.  The purpose of these rules is to define the procedures for protection of the rights of persons applying for, eligible for, or receiving mental health services which are funded, monitored or regulated by the department, and state mental health facilities, community mental health programs, community mental health providers or their subcontracted service providers.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.02  Definitions.

 

          (a)  “Abuse” means an act or omission by an employee, subcontracted service provider, consultant, student, intern or volunteer of a program which is not accidental and harms or threatens to harm an individual’s physical, mental or emotional health or safety and includes emotional abuse, physical abuse, and sexual abuse.

 

          (b)  “Administrator” means the chief administrator for the bureau of mental health services of the department of health and human services.

 

          (c)  “Agency” means a facility, community mental health program, community mental health provider, or any of their subcontracted service providers.

 

          (d)  “Agency director” means the person responsible for the overall administration or operation of a CMHP, community mental health provider, peer support agency, emergency shelter, or facility or his or her designee.

 

          (e)  “Bureau of mental health services (BMHS)” means the bureau of mental health services of the department of health and human services.

 

          (f)  “Coercion” means an act by an employee, subcontracted service provider, student, intern, or volunteer, which is designed to compel an individual to act in clear opposition to the preference of the individual excluding involuntary admissions, revocations of conditional discharge, the imposition of emergency treatment, and as otherwise prescribed by law or rule.

 

          (g)  “Commissioner” means the commissioner of the department of health and human services or his or her designee.

 

          (h)  “Community mental health program (CMHP)” means “community mental health program” as defined in RSA 135-C:2, IV.

 

          (i)  “Community mental health provider” means a medicaid provider of community mental health services that has been approved by the commissioner to provide specific mental health services pursuant to He-M 426.

 

          (j)  “Complaint” means:

 

(1)  Any allegation or assertion that a right of an individual as set forth in He-M 309, rights of persons receiving mental health services in the community, or He-M 311, rights of persons in state mental health facilities, have been violated; or

 

(2)  Any allegation or assertion that the department or an agency has acted in an illegal or unjust manner with respect to an individual or category of individuals.

 

          (k)  “Complaint investigator” means the person who is designated by office of client and legal services or a facility to investigate, resolve or take other appropriate action on complaints.

 

          (l)  “Complaint manager” means a person designated by the community mental health program or the community mental health provider who is responsible for receiving, managing, and resolving complaints in accordance with these rules.

 

          (m)  “Department” means the New Hampshire department of health and human services.

 

          (n)  “Emotional abuse” means any of the following when the act results, or is likely to result in the mental anguish or emotional distress of an individual:

 

(1)  The misuse of power, authority or both;

 

(2)  Harassment; such as:

 

a.  Intimidation;

 

b.  Humiliation; or

 

c.  Degradation; or

 

(3)  Unreasonable confinement.

 

          (o)  “Exploitation” means the use of an individual’s person or property for another’s profit or advantage, or breach of a fiduciary relationship through improper use of an individual’s person or property, including situations where a person obtains property or services from an individual through undue influence, harassment, deception, fraud, or duress.

 

          (p)  “Facility” means New Hampshire hospital, Glencliff home, or any other treatment program designated under RSA 135-C:26.

 

          (q)  “Facility administrator”  means the chief executive officer at New Hampshire hospital, or administrator at Glencliff home, or any other treatment program designated under RSA 135-C:26.

 

          (r)  “Founded” means that the facts indicate that the rights of an individual under He-M 309, or He-M 311 were violated.

 

          (s)  “Guardian” means a person appointed by the court pursuant to RSA 464-A:9 to have care and custody of an individual, or the parent or legal custodian of a minor child.

 

          (t)  “Individual” means a consumer as defined by He-M 401 or a client as defined in He-M 311, who has applied for, has been found eligible for, or is receiving state-funded services from an agency, or peer support agency, or a guardian acting on his or her behalf.

 

          (u)  “Neglect” means an act or omission which results or is likely to result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional, or physical health and safety of an individual.

 

          (v)  “Office of client and legal services (OCLS)” means the client and legal services section of the department established by RSA 171-A:19 to, in part, assist the commissioner in responding to complaints by or on behalf of persons with mental illness.

 

          (w)  “Physical abuse” means the use of physical force which results or is likely to result in physical injury to an individual.

 

          (x)  “Restraint” means:

 

(1)  Any drug or medication when it:

 

a.  Is used as a restriction to manage an individual’s behavior or restrict the individual’s freedom of movement; and

 

b.  Is not a standard treatment or dosage for the individual’s condition, in that its overall effect reduces an individual’s ability to effectively or appropriately interact;

 

(2)  Any manual method, physical or mechanical device, material or equipment that immobilizes an individual or reduces the ability of an individual to move his or her arms, legs, head, or other body parts freely but does not include devices, such as orthopedically prescribed devices, surgical dressings or bandages, protective helmets, or other methods that involve the physical holding of an individual, if necessary, for the purpose of:

 

a.  Conducting routine physical examinations or tests;

 

b.  Protecting the individual from falling out of bed; or

 

c.  Permitting the individual to participate in activities without the risk of physical harm; or

 

          (3)  “Restraint” as defined in RSA 126-U:1, IV when the individual is a child as defined in RSA 126-U:1,I.

 

          (y)  “Seclusion” means:

 

(1)  The involuntary confinement of an individual who:

 

a.  Is placed alone in a room or area from which the individual is physically prevented, by lock or person, from leaving; and

 

b.  Cannot or will not make an informed decision to agree to such confinement; or

 

(2)  “Seclusion” as defined in RSA 126-U:1, V-a when the individual is a child as defined in RSA 126-U:1,I.

 

          (z)  “Sexual abuse” means contact or interaction of a sexual nature between an individual and an employee of, a consultant, or a volunteer for a program.

 

          (aa)  “Unfounded” means that the facts do not indicate that the rights of an individual under He-M 309, or He-M 311 were violated.

 

          (ab)  “Unreasonable confinement” means any confinement which is neither medically necessary nor necessary for the protection of a person or to prevent harmful behavior, or confinement used with punitive intent.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.03  Responsibility for Rights Protection.

 

          (a)  Each agency shall have the responsibility for rights protection in accordance with these rules both in the services it operates and in the services it provides by contract with third parties.

 

          (b)  Agencies that are operated directly by the department shall have the responsibility for rights protection in accordance with these rules.

 

          (c)  Agencies shall comply with the complaint procedures described in these rules.

         

          (d)  A peer support agency shall have complaint procedures that comply with He-M 315.10.

 

          (e)  Each agency shall have one or more staff persons designated as complaint managers to receive complaints in accordance with these rules at all times.

 

          (f) Each peer support agency shall have one or more staff persons designated as complaint investigators to receive complaints in accordance with these rules at all times.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.04  Allegations of Abuse, Neglect, and Exploitation.

 

          (a)  Any person who suspects or believes in good faith that an individual has been subject to abuse, neglect, or exploitation, as defined in RSA 161-F, RSA 169-C, or these rules shall:

 

(1)  Take all practicable steps to protect the individual; and

 

(2)  Report the instance, including the issues presented and the actions taken, of abuse, neglect or exploitation to the Bureau of Elderly and Adult Services (BEAS) or division of children youth and families (DCYF), as appropriate, OCLS and the agency director.

 

          (b)  BEAS shall investigate allegations of abuse, neglect, and exploitation in accordance with RSA 161-F.

 

          (c)  DCYF shall investigate allegations of abuse, neglect, and exploitation in accordance with RSA 169-C.

 

          (d)  Upon completion of the investigations that occurred in accordance with (b) and (c) above, BEAS or DCYF, respectively, shall report the findings to OCLS and the appropriate agency.

 

          (e)  In the event of the death of an individual the agency shall report on the circumstances surrounding the death to the department, in compliance with department’s quality assurance measures under RSA 126-A:4, IV.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.05  Complaints.

 

          (a)  A complaint as defined in He-M 204.02 (j) may be made by any person, including but not limited to:

 

(1)  An individual;

 

(2)  An individual’s guardian;

 

(3)  An applicant for services; or

 

(4)  An employee of:

 

a.  The department; or

 

b.  An agency.

 

          (b)  A complaint may be made orally or in writing to any employee of an agency.

 

          (c)  Complaints alleging coercion, restraint, seclusion, or retaliation may be made to the complaint manager or to OCLS orally or in writing.

 

          (d)  Agency staff shall put the complaint in writing and seek to have it signed by the complainant.

 

          (e)  Agencies shall designate a staff person to receive and respond to complaints as described in (g) through (k) below.

 

          (f)  All complaints shall be submitted to the complaint manager except for as described in He-M 204.11.

 

          (g)  At any point in the complaint process, the individual shall have the right to:

 

(1)  Have a person advocate on his or her behalf, including but not limited to:

 

a.  A peer support advocate;

 

b.  An advocate from the Disability Rights Center-NH; or

 

c.  A person designated by the individual to function in that capacity;

 

(2)  Decide whether the complaint is resolved formally or informally; and

 

(3)  Elect a formal resolution if informal resolution efforts do not address the issue in a manner deemed satisfactory by the individual.

 

          (h)  The expense of advocacy, if any, shall be borne by the individual.

 

          (i)  The complaint manager shall:

 

(1)  Explain to the individual the processes for resolution:

 

a.  Informal resolution through the agency in accordance with He-M 204.07; or

 

b.  Formal resolution through the department in accordance with He-M 204.08;

 

(2)  Notify the individual of his or her rights described in (g) above; and

 

(3)  Ensure that the safety of the individual is protected.

 

          (j)  If the individual has a guardian, the agency staff person shall notify the guardian of the complaint.

 

          (k)  Except as described in He-M 204.11, if the individual chooses to resolve the complaint formally:

 

(1)  The complaint manager shall immediately forward the complaint to OCLS; and

 

(2)  Within 3 business days, OCLS shall designate a complaint investigator for initiation of the formal resolution process in accordance with He-M 204.08.

 

          (l)  A designated complaint investigator shall not be an employee of the CMHP nor shall an employee of one CMHP be designated to investigate a complaint at another CMHP.

 

          (m)  Employees of the department or agency shall assist persons to file complaints.

 

          (n)  Employees of the department or agency shall provide information to obtain advocacy services.

 

          (o)  A complainant may request to keep his or her identity confidential throughout the complaint process.

 

          (p)  If the confidentiality of the complainant interferes with the investigation and/or the resolution of the complaint, the complaint investigator or complaint manager shall:

 

(1)  Notify the complainant if his or her request for confidentiality in (o) above interferes with the investigation and resolution of the complaint; and 

 

(2)  Work collaboratively with the complainant to determine whether or not his or her identity will be revealed.

 

          (q)  Except for as described in He-M 204.11, agencies shall maintain a record of complaints filed which contain the following information:

 

(1)  The nature of the complaint with reference to the section(s) of He-M 309 that coincide with the alleged violation;

 

(2)  The outcome of the informal resolution;

 

(3)  The length of time to resolve the complaint from the time of the filing of the complaint through resolution; and

 

(4)  Whether or not the complaint was forwarded for formal resolution.

 

          (r)  For any complaints involving allegations of seclusion or restraint of a child, the agency shall comply with the notice and reporting requirements of RSA 126-U:7 and 10.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.06  Protection from Retaliation.

 

          (a)  No individual or applicant for services shall be subject to any form of harassment or retaliation by any person under the jurisdiction of the department as a result of filing a complaint.

 

          (b)  No employee of the department or an agency shall be subject to any form of discipline as a result of filing a complaint when such complaint is made in good faith.

 

          (c)  Except when necessary to protect the health and safety of the individual and others, an agency shall not discontinue, amend, or otherwise disrupt services provided to the individual as a result of that individual or a person acting on the individual’s behalf filing a complaint.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.07  Informal Resolution.

 

          (a)  The individual may choose to resolve the complaint through the informal resolution process.

 

          (b)  The objective of informal resolution shall be to empower, engage, and assist the individual to resolve the problem through techniques such as negotiation and mediation.

 

          (c)  Informal resolution shall be completed within 30 days of submission of the complaint, unless the complainant authorizes an extension of time.

 

          (d)  If resolution cannot be achieved, the matter shall be subject to formal resolution as described in He-M 204.08.

 

          (e)  The individual may request the initiation of the formal resolution process at any time during the informal resolution process.

 

          (f)  Discussions that occur during the informal resolution process shall be held confidential and not used as evidence in subsequent formal resolution proceedings and administrative hearings in this part.

 

          (g)  No complaint alleging retaliation, coercion, restraint, seclusion, abuse, neglect or exploitation shall be resolved utilizing the process outlined in this section.

 

          (h)  Matters referred to OCLS may be resolved informally with the consent of the individual.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.08  Formal Resolution.

 

          (a)  The complaint investigator shall investigate and attempt to resolve the complaint to the satisfaction of the individual within 20 business days of receipt of a complaint or after the individual requests initiation of the formal resolution process unless the complainant authorizes an extension.

 

          (b)  The complaint investigator, if necessary to develop relevant facts, shall:

 

(1)  Interview:

 

a.  The complainant;

 

b.  The individual;

 

c.  The guardian, if any;

 

d.  The respondent;

 

e.  Any witnesses to any incident on which the complaint is based; and

 

f.  Any clinical consultant whom the investigator utilizes to assist with the investigation; and

 

(2)  Review information in the individual’s record, policies and procedures, any physical and forensic evidence, and any other documents.

 

          (c)  Agencies shall allow designated complaint investigators unfettered access to the agency premises, staff, training records, and files of individuals who are the subjects of complaints, and any other agency documents or information relevant to the complaint investigation unless otherwise restricted by law.

 

          (d)  Two or more complaints involving the same act or incident shall be consolidated and treated as one complaint provided that:

 

(1)  Separate notices and copies of resolutions shall be sent to each individual; and

 

(2)  Each individual shall be given the opportunity to accept or appeal such resolution.

 

          (e)  The respondent may be represented by counsel during the interview conducted by the complaint investigator.  However, the complaint investigator shall not share confidential information about the individual with the respondent or the respondent’s attorney without the permission of the individual.

 

          (f)  The complaint investigator shall prepare and submit a report to the bureau administrator which includes:

 

(1)  The nature of the allegations;

 

(2)  A summary of the issues presented, including those that arose during the investigation;

 

(3)  The names of persons interviewed during the formal resolution process;

 

(4)  The investigatory findings of fact;

 

(5)  The dates of any reports made to BEAS or DCYF; and

 

(6)  A list of all documents reviewed.

 

          (g)  Based upon a review of the report submitted in accordance with (f) above, the bureau administrator shall determine whether or not the complaint is founded or unfounded within 10 business days of receiving the report.

 

          (h)  The bureau administrator shall issue a decision that includes:

 

(1)  Whether or not the complaint is founded;

 

(2)  The basis for the determination;

 

(3)  The corrective action that will be implemented; and

 

(4)  The appeal procedure.

 

          (i)  The bureau administrator shall forward to the individual and the agency:

 

(1)  The complaint investigator’s report; and

 

(2)  The written final decision.

 

          (j)  CMHPs or community mental health providers shall implement corrective actions included in (h) above within 20 business days of the date of the decision.

 

          (k)  The CMHP or community mental health provider shall provide documentation of implementation of corrective actions in accordance with (h) above to the bureau administrator no later than 20 days from the date of the decision.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.09  Emergency Action.

 

          (a)  Agencies and peer support agencies shall take emergency action on all complaints when there exists an act or circumstance that, if not promptly corrected or resolved, will likely result in serious harm to the individual, other persons, or property.

 

          (b)  An agency or peer support agency shall immediately take steps to protect the safety of the individuals involved.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.10  Role and Responsibilities of Complaint Managers and Complaint Investigators.

 

          (a)  Each complaint manager and complaint investigator shall complete an in-service training offered by the department, annually and within 3 months of being hired.

 

          (b)  The in-service training shall include:

 

(1)  A review of investigatory procedures;

 

(2)  Rights and advocacy resources; and

 

(3)  Informal resolution methods.

 

          (c)  Participants shall sign in at the time of training as verification of attendance, and OCLS shall maintain a list of those who have completed this training requirement.

 

          (d)  Each agency and peer support agency shall prominently post the names of the complaint managers or complaint investigator, as applicable and contact information for OCLS.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.11  Special Requirements for Facilities.  The following requirements shall apply to complaints relative to facilities:

 

          (a)  All complaints shall be submitted to the designated facility complaint investigator for resolution in accordance with He-M 204.05 and 204.06;

 

          (b)  Formal resolutions shall be completed in accordance with He-M 204.08, including investigating and attempting to resolve the complaint to the satisfaction of the individual, within 20 business days of receipt of a complaint or after the individual requests initiation of the formal resolution process unless the individual authorizes an extension of time;

 

          (c)  Designated facility complaint investigators shall submit reports containing the required elements described in He-M 204.08 (f) to the facility administrator;

 

          (d)  Based on the report, the facility administrator shall determine whether or not the complaint is founded and issue orders for corrective action, in the event that the complaint is founded, within 10 business days of receiving the report;

 

          (e)  Designated facility complaint investigators shall not have responsibility for:

 

(1)  Direct provision of services to a individual on whose behalf a complaint is forwarded for investigation; and

 

(2)  The risk management activities of the facility;

 

          (f)  The facility administrator shall forward the decision to the individual immediately;

 

          (g)  Facilities shall record the following information:

 

(1)  The nature of the complaint;

 

(2)  The method of the resolution, whether formal or informal;

 

(3)  The outcome of the formal resolution, whether founded or unfounded; and

 

(4)  The length of time to resolve the complaint from the filing of the complaint to the resolution;

 

          (h)  Facilities shall report the information recorded in (g) above to OCLS annually; and

 

          (i)  For any complaints involving allegations of seclusion or restraint of children in schools and treatment facilities, the facility shall comply with the notice and reporting requirements of RSA 126-U:7 and 10.

 

Source.  (See Revision Note at part heading for He-M 204) #5868, eff 7-15-94, EXPIRED 7-15-00

 

New.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

          He-M 204.12  Appeals.

 

          (a)  An individual may appeal in accordance with He-C 200 within 30 calendar days of the date of the decision pursuant to He-M 204.08 (h).

 

          (b)  Appeals shall be forwarded to the administrator, in writing, in care of the department’s OCLS.

 

          (c)  The OCLS shall immediately forward the appeal to the department’s administrative appeals unit which shall assign a presiding officer to conduct a hearing , as provided in He-C 200.

 

          (d)  The burden of proof in appeals shall be determined in accordance with He-C 203.14.

 

          (e)  The presiding officer shall issue a decision with orders for corrective action.

 

          (f)  An award of money damages shall not be made except as reimbursement for the loss of any money held in safekeeping by the community residence or a facility in accordance with He-M 309 and He-M 311.

 

Source.  #9850, eff 1-20-11, EXPIRED: 1-20-19

 

New.  #12731, INTERIM RULE, eff 2-22-19, EXPIRED: 8-21-19

 

New.  #12878, eff 9-25-19

 

PART He-M 205  PUBLIC HEARINGS FOR RULEMAKING - EXPIRED

 

Statutory Authority:  RSA 541-A:16, I(b)(3)

 

          He-M 205.01 - 205.06 - EXPIRED

 

Source.  #6001, eff 4-1-95, EXPIRED: 4-1-03

 

APPENDIX

 

 

Rule

 

Specific State or Federal Statutes or Regulations which the Rule Implements

 

 

He-M 201.01 - 201.05

RSA 161-F:51; RSA 135-C:56

He-M 201.03

RSA 161-F:46

He-M 202.01 - 202.10

RSA 171-A:13; 14; 19, III

He-M 202.09 (g)-(h)

RSA 171-A:33

 

 

He-M 203 - All sections

RSA 171-A:14, V (Specific provisions implementing

specific federal regulations are listed below)

He-M 203.01

34 CFR Part 303.400, IDEIA Part C

He-M 203.02(j)

He-M 203.02(k)

He-M 203.02(m)

34 CFR Part 303.27, IDEIA Part C

34 CFR Part 303.435, IDEIA Part C

34 CFR Part 303.431, IDEIA Part C

He-M 203.03 - 203.04

34 CFR Part 303.421, IDEIA Part C

He-M 203.05

34 CFR Part 303.443, 303.403, IDEIA Part C

He-M 203.06

34 CFR Part 303.430 , IDEIA Part C

He-M 203.07

34 CFR Part 303.435, IDEIA Part C

He-M 203.08

34 CFR Part 303.436 , IDEIA Part C

He-M 203.09

34 CFR Part 303.437, IDEIA Part C

He-M 203.10

34 CFR Part 303.438 , IDEIA Part C

He-M 203.11

34 CFR Part 303.433-303.434, IDEIA Part C

 

 

He-M 204.01

RSA 135-C:56-57, RSA 171-C:19

He-M 204.02

RSA 135-C:56-57, RSA 171-C:19

He-M 204.03

RSA 135-C:56-57, RSA 171-C:19

He-M 204.04

RSA 135-C:56-57, RSA 171-C:19

He-M 204.05

RSA 135-C:56-57, RSA 171-C:19

He-M 204.06

RSA 135-C:56-57, RSA 171-C:19

He-M 204.07

RSA 135-C:56-57, RSA 171-C:19

He-M 204.08

RSA 135-C:56-57, RSA 171-C:19

He-M 204.09

RSA 135-C:56-57, RSA 171-C:19

He-M 204.10

RSA 135-C:56-57, RSA 171-C:19

He-M 204.11

RSA 135-C:56-57, RSA 171-C:19

He-M 204.12

RSA 135-C:56-57, RSA 171-C:19