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
(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;
ss by #12940, eff 12-10-19
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 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.”
(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 an 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 disability 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, property, or money 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 could result, in the deprivation of essential services 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 could
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;
ss by #12940, eff 12-10-19
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; and
(2) Put the complaint in writing if the complainant
cannot or will not do so.
(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); ss
by #12940, eff 12-10-19
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 the 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
Disability Rights Center - NH 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); ss by #12940, eff 12-10-19
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 Disability Rights
Center – NH 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 a formal 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 made by the guardian or ward ; 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; ss by #12940, eff
12-10-19
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); ss
by #12940, eff 12-10-19
He-M
202.07 Complaint Investigation.
(a) The OCLS shall at all times have at least 3
persons designated as complaint investigators 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 the 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 websites, 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 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
(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) The individual or his or her guardian, the
area agency executive director, and the program involved, if any, shall have 10
business days from the receipt of the
report to respond in writing, indicating approval or disapproval of the determination
and the proposed resolution in the complaint investigation report. Failure to respond within the time allowed
shall constitute acceptance of the report’s determination and proposed
resolution, and the report shall be considered final.
(s) The timeframe to respond in (r) above shall
be extended by 10 business days upon written request of the individual,
guardian, area agency executive director, or program to the complaint
investigator. Failure to respond within
the extended time allowed shall constitute acceptance of the report’s
determination and proposed resolution, and the report shall be considered
final.
(t) 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.
(u) If further investigation is requested
pursuant to (t) 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, which shall be considered the final
report.
(v) If further review by the bureau administrator
is requested pursuant to (t) 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 (w) below.
(w) 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 (t) above and notify the parties of the right to appeal
to the commissioner pursuant to He-C 200.
(x) Once a complaint report is final pursuant to
(r), (s), (u), or (w) above, if the report includes recommendations for
resolution that require area agency or program action, the area agency or
program shall send written documentation of implementation of such actions to
the complaint investigator within 20 business days of the date of the final
report, unless a shorter timeline is specified.
If implementation of the action will take longer than 20 business days,
the area agency or program shall send documentation to the complaint
investigator of the planned action within 20 business days from the date of the
report, and shall send written documentation demonstrating implementation of
the action to the complaint investigator upon completion. .
(y) An area agency or a program 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;
ss by #12940, eff 12-10-19
He-M
202.08 Appeal.
(a)
Within 30 days of receipt of a final determination pursuant to He-M 202.07 (w),
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, 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 (w),
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;
ss by #12940, eff 12-10-19
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; ss by #12940, eff 12-10-19
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
(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 Complaints – Mediation.
(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
(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
(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 |
|
|
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 |