reglab/statecodes huggingface dataset:
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.13 - EMERGENCY SHELTER/CAREGIVER SERVICES

Current through Register Vol. 35, No. 13, July 16, 2024
A. Any adult who has been or is at continued
				risk of being abused, neglected or exploited may be eligible to receive
				emergency shelter/caregiver services if he or she requires a protected
				environment to maintain health and safety.
(1) Emergency shelter/caregiver services are
				provided without regard to income.
(2) Emergency shelter/caregiver services are
				utilized only in emergency situations and are temporary until a permanent safe
				environment can be located.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.14 - HOME CARE SERVICES

Current through Register Vol. 35, No. 13, July 16, 2024
A. Home
				care services may be provided or terminated by the department as resources and
				funding allows.
B. Any
				incapacitated adult who is substantiated for abuse, neglect or exploitation may
				be eligible for home care. On occasion, an incapacitated adult, who is not
				substantiated for abuse, neglect or exploitation, may be considered for home
				care services if the department determines that the adult remains at imminent
				risk of abuse, neglect or exploitation. The following criteria apply to adults
				considered for home care:
(1) the adult must
				meet institutional care medicaid eligibility; and
(2) the adult must have a documented medical
				incapacity that limits their activities of daily living and their ability to
				provide their own care at home.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.15 - ATTENDANT CARE SERVICES

Current through Register Vol. 35, No. 13, July 16, 2024
A.
				Attendant care may be provided by the department as resources and funding
				allows.
B. Attendant care is
				non-medical personal care provided to a functionally impaired adult in their
				own home by a caregiver. An adult who is substantiated for or is at imminent
				risk of abuse, neglect or exploitation may be eligible for attendant care if no
				other care options exist and if attendant care will reduce the likelihood of
				the adult being admitted to a nursing home.
(1) The adult must meet institutional care
				medicaid eligibility.
(2) The adult
				must have a documented medical incapacity that significantly limits their
				activities of daily living and their ability to provide all of their own care
				at home.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.16 - ADULT DAY CARE

Current through Register Vol. 35, No. 13, July 16, 2024
A. Any
				incapacitated adult who has been substantiated for or is at risk of abuse,
				neglect or exploitation may be eligible for adult day care if adult day care
				will reduce the likelihood of future abuse, neglect or exploitation.
(1) the adult must meet the institutional
				medicaid income eligibility.
(2)
				the adult must have a documented medical incapacity that limits their
				activities of daily living or significantly limits their instrumental
				activities of daily living.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.17 - DOCUMENTATION

Current through Register Vol. 35, No. 13, July 16, 2024
A. The department
				or contract provider documents case work activities and maintains records
				concerning services provided to all individuals receiving adult
				services.
B. The records created
				and maintained by the department or by the contract provider on behalf of the
				department are confidential and are only released as allowed for by
				law.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.18 - ADMINISTRATIVE REVIEW

Current through Register Vol. 35, No. 13, July 16, 2024
The department will provide an informational administrative
				  review of its decision to deny, modify or terminate the adult's services. The
				  aggrieved party must request a review in writing to the adult protective
				  services division director within 15 days of receiving notice of the
				  department's intent to deny, modify or terminate services. The request for a
				  hearing shall be mailed or hand delivered to the specific office of the adult
				  protective division director or to an alternate address, if set forth in the
				  notice.
A. In the written request for
				review, the aggrieved party shall state the reason(s) why he or she should be
				eligible to receive the services in question and include any supporting
				documentation that has not been previously provided or considered by the
				department.
B. Upon receipt of the
				aggrieved party's request for the review, the department will reconsider its
				decision and inform the aggrieved party within 15 business days of the decision
				to affirm or reverse the denial, modification or termination of the services in
				question. The department's decision will be in writing. Except for a denial of
				service, the department will inform the aggrieved party of their right to
				request an administrative hearing before the secretary in accordance with
				8.11.4.19 NMAC for such modification or termination. An administrative review
				of a denial shall be final and is not appealable unless otherwise provided by
				law. In cases of modification or termination of services, the aggrieved party
				may file a written request for an administrative hearing within 10 business
				days after receipt of the department's letter of decision on the administrative
				review.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.19 - ADMINISTRATIVE HEARING

Current through Register Vol. 35, No. 13, July 16, 2024
A. If services
				are modified or terminated prior to the expiration date of the service plan and
				an administrative review has not resolved the matter, the aggrieved party may
				submit a written appeal of the administrative reviewer's decision to the
				secretary within 15 calendar days after the decision is issued, in accordance
				with 8.11.4.18 NMAC.
B. If the
				aggrieved party timely appeals the reviewer's administrative decision pursuant
				to 8.11.4.18 NMAC, the office of the secretary shall docket the appeal on the
				date received and shall provide notice of the appeal within 15 days of its
				receipt to the aggrieved party and the adult protective services division
				director. The secretary may hear the appeal or designate a hearing officer to
				hear the appeal and make a recommended decision to the secretary.
C. The secretary or the secretary's designee
				shall prepare a notice of hearing setting forth the date, time and place of the
				hearing. The notice of hearing shall be sent to the parties by regular mail
				within 15 days of the department sending notice of appeal to them. The hearing
				shall be held no sooner than 15 days and no later than 30 days of the date the
				notice of hearing is mailed to the parties. Either party may request a
				continuance of the hearing for good cause. If a hearing is continued it shall
				be rescheduled at the earliest date and time available to the
				parties.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.20 - PRE-HEARING

Current through Register Vol. 35, No. 13, July 16, 2024
A. Upon receipt of
				the request for administrative hearing, the hearing officer shall establish an
				official record which contains all the filed notices, pleadings, briefs,
				recommendations, correspondence, documents and decisions.
B. No person may discuss the merits of any
				pending adjudicatory proceedings with the designated hearing officer or the
				secretary, unless both parties or their representatives are present.
C. The hearing officer may consolidate or
				join cases if there is commonality of legal issues or parties and if it would
				expedite final resolution of the cases and would not adversely effect the
				interests of the parties nor violate the confidentiality provisions of the
				Adult Protective Services Act. The hearing officer also may join the appeals of
				an appellant who has two or more appeals pending.
D. Upon request of either party or upon the
				hearing officer's own motion, the hearing officer may require a pre-hearing
				order or may schedule a pre-hearing conference at a time and place reasonably
				convenient to all parties to:
(1) limit and
				define issues;
(2) discuss possible
				pre-hearing dispositions;
(3)
				identify and limit the number of witnesses; and
(4) discuss such other matters as may aid in
				the simplification of evidence and disposition of the proceedings.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.21 - CONDUCT OF THE HEARING

Current through Register Vol. 35, No. 13, July 16, 2024
A. Failure
				of a party to appear on the date and time set for the hearing, without good
				cause shown, constitutes default and the hearing officer shall so notify the
				parties in writing and enter a default judgment against the party.
B. The hearing is open to the public unless
				the hearing officer directs that the hearing be closed.
C. Any party may appear at the hearing
				through a licensed attorney, provided the attorney has made a written entry of
				appearance within a reasonable period of time prior to the hearing
				date.
D. The hearing officer may
				clear the room of witnesses not under examination if either party so requests
				and of any person who is disruptive. The department is entitled to have a
				representative of APS, in addition to its attorney, in the hearing room during
				the course of the hearing, even if the person will also testify in the
				hearing.
E. Oral evidence is to be
				taken only under oath or affirmation.
F. Generally, except as provided in the
				following subsection or waived by the party, the order of presentation for the
				hearing is as follows:
(1) opening of
				proceedings and taking of appearances by the hearing officer;
(2) disposition of preliminary and pending
				matters;
(3) opening statement of
				the department;
(4) opening
				statement of the appellant;
(5)
				department's case-in-chief;
(6)
				appellant's case-in-chief;
(7)
				department's rebuttal;
(8)
				department's closing argument;
(9)
				appellant's closing argument; and
(10) closing of the proceeding by the hearing
				officer.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 4 - ADULT SERVICES › Section 8.11.4.22 - POST-HEARING

Current through Register Vol. 35, No. 13, July 16, 2024
A. The hearing
				officer may require or permit written closing post-hearing briefs and proposed
				findings of facts and conclusions of law.
B. The hearing officer shall submit a
				recommended decision to the secretary as soon as practicable, but no later that
				20 working days after the expiration of any time set for the submittal of any
				last post-hearing proposed findings of facts and conclusions of law, arguments
				or briefs.
C. As a general rule,
				the secretary will only consider the hearing officer's recommended decision,
				post-hearing briefs and proposed finding of fact and conclusions of law. Where
				circumstances warrant, the secretary may review all or a portion of the record
				before the hearing officer.
(1) The secretary
				will not consider any additional evidence or affidavits not in the official
				record of the hearing or in pleadings not filed in accordance with the hearing
				officer's scheduling order.
(2) If
				the secretary disagrees with the findings and conclusions of the hearing
				officer, the secretary shall issue a separate order which clarifies the
				findings and conclusions at issue and the reasons a different decision is
				warranted. An appeal of the final decision by the secretary may be made in
				accordance with applicable law.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.3 - STATUTORY AUTHORITY

Current through Register Vol. 35, No. 13, July 16, 2024
Adult Protective Services Act, Section
				  27-7-14 et
				  seq. NMSA 1978, as amended; Public Health Act, Section
				  24-1-5
				  L, as amended; Probate Code, Section
				  45-5-301
				  et seq. NMSA 1978, as amended; Resident Abuse and Neglect Act, Section
				  30-47-1 et
				  seq. NMSA 1978, as amended; Aging and Long-Term Services Act, Section
				  9-23-1 et seq. NMSA
				  1978, as amended.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.6 - OBJECTIVE

Current through Register Vol. 35, No. 13, July 16, 2024
To establish guidelines for the provision of adult legal
				  services by the department that are consistent with statutory authority and
				  legal mandates.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.7 - DEFINITIONS

Current through Register Vol. 35, No. 13, July 16, 2024
A.
"Ability
				to consent"
means an adult's ability to understand and appreciate the
				nature and consequences of proposed protective services or protective
				placement, including benefits, risks and alternatives to the proposed services
				or placement and to make or communicate an informed decision.
B. The
"adult protective services (APS)
				attorney"
is the attorney that represents the department in actions
				pursuant to the Adult Protective Services Act and federal and state
				constitutional, statutory and case law.
C.
"Advance directives"
include
				powers of attorney, living wills and written statements appointing surrogate
				health care decision makers under the Uniform Health Care Decisions Act
				(Section
				24-7A-1 et
				seq. NMAC 1978 as amended) and the Mental Health Care Treatment Decisions Act
				(Section
				24-7B-1 et
				seq. NMAC 1978 as amended).
D. An
"affidavit"
is a sworn statement of facts and accompanies the
				petition for an order. It is signed by any person who either has personal
				knowledge of the facts or has been informed of them and believes them to be
				true.
E.
"Conservator"
is a person or entity appointed by the court to manage the
				property or financial affairs, or both, of an incapacitated adult.
F.
"Department"
means the aging
				and long-term services department.
G.
"Division"
means the adult
				protective services division of the aging and long-term services
				department.
H.
"Guardian"
is a person or entity who has qualified to provide for the
				care, custody, or control of an incapacitated adult pursuant to court
				appointment. Examples of a guardian's responsibilities may include making
				decisions about where the incapacitated person lives, making health care or
				treatment decisions for the incapacitated adult, and making decisions relating
				to the incapacitated adult's personal safety or care.
I.
"Guardianship or
				conservatorship"
is the appointment, by a court, of a person or entity
				to assume decision making responsibility and to handle the affairs of an
				individual the court has found to be "incapacitated" as defined in the Probate
				Code. A guardian and conservator may be the same person or institution or they
				may be two different persons or entities.
J. An
"incapacitated adult"
is
				defined in the Adult Protective Services Act as any adult with a mental,
				physical or developmental condition that substantially impairs the adult's
				ability to provide adequately for the adult's own care or protection.
K. A
"surrogate"
is a person
				legally authorized to act on an adult's behalf.
L. A
"visitor"
is a court
				appointed person, who is not a department employee, with no personal interest
				in the proceedings who is trained or possesses the expertise to evaluate the
				person's needs in a guardianship or conservatorship case.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.8 - PURPOSE OF ADULT PROTECTIVE LEGAL SERVICES

Current through Register Vol. 35, No. 13, July 16, 2024
The purpose of adult protective legal services is to protect
				  incapacitated adults through legal intervention consistent with the adult's
				  need for services and with the least possible restriction of the adult's
				  liberty.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.9 - ROLE OF THE ADULT PROTECTIVE SERVICES ATTORNEY

Current through Register Vol. 35, No. 13, July 16, 2024
A. The adult protective services attorney
				provides information, interpretation of law and general assistance to the
				department in the provision of adult protective services.
B. When the adult protective services
				attorney, supervisor, and regional manager cannot agree on the most appropriate
				course of action to protect an incapacitated adult through legal intervention,
				the issues shall be resolved between the general counsel and adult protective
				services division director. If they cannot agree, the department's cabinet
				secretary is the final arbiter.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.10 - GENERAL PROVISIONS

Current through Register Vol. 35, No. 13, July 16, 2024
A. The
				department complies with the provisions of the Adult Protective Services (APS)
				Act and the Rules of Civil Procedures and the Rules of Evidence for the
				district courts.
B. Attorney-client
				relationship: The primary decision-maker on the case of an incapacitated adult
				is the caseworker for the purpose of the attorney-client relationship. If a
				conflict of opinion arises between the caseworker and his supervisor or a
				manager within the chain-of-command, the decision-maker becomes the highest
				ranking person making a determination in the matter up to and including the
				department's cabinet secretary.
C.
				Attorney-client privileged communications: Written and verbal communications
				concerning department business between an APS attorney and a department
				employee in anticipation of litigation or concerning on-going litigation is
				privileged. Privileged communication may not be disclosed to a third party
				without appropriate permission or by order of the court.
D. Confidentiality/access to records:
				Protective services division records are confidential and can only be inspected
				pursuant to a valid court order except by those entities specifically entitled
				to access under the Adult Protective Services Act.
(1) When allowing access to an authorized
				entity, all attorney-client privileged information and, where protected by law,
				all identifying information on the referral source on referrals is
				stricken.
(2) Unless approved by a
				department attorney, division records are not released pursuant to a subpoena
				because subpoenas do not reflect a court determination of legitimate interest
				in the case or the work of the court.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.11 - CIVIL OR CRIMINAL COURT

Current through Register Vol. 35, No. 13, July 16, 2024
The department may cooperate with parties and courts in
				  criminal and other civil proceedings pursuant to applicable
				  law.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.12 - CASES ON TRIBAL LANDS

Current through Register Vol. 35, No. 13, July 16, 2024
The department may not provide legal services on Indian
				  tribal land unless allowed under federal law after written authorization is
				  received from tribal leadership (tribal governor or
				  president.)
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.13 - EMERGENCY PROTECTIVE SERVICES OR PLACEMENT

Current through Register Vol. 35, No. 13, July 16, 2024
A. If an incapacitated adult is in an
				emergency situation and lacks the ability to consent to receive protective
				services and no other authorized person is available or willing to consent to
				protective services, the department may seek an emergency order from the
				district court for such services.
B. The department files an exparte order
				based upon a petition and affidavit.
C. Within 24 hours, excluding weekends and
				legal holidays, from the time the exparte order is issued or, if the ex-parte
				order authorizes forcible entry, from the time the ex-parte order is served
				upon the incapacitated adult, the department mails or delivers written notice,
				including a copy of the petition, the ex parte order, and the affidavit for the
				ex parte order, to:
(1) the adult;
(2) his or her spouse;
(3) adult children or next of kin;
(4) surrogate or guardian, if any;
				and
(5) the notice informs all
				parties that a hearing will be held no later than ten days after the date the
				petition is filed to determine whether the conditions creating the emergency
				have been removed and whether the adult should be released from the court's
				order.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.14 - CONTINUING NEED FOR PROTECTIVE SERVICES OR PLACEMENT

Current through Register Vol. 35, No. 13, July 16, 2024
A. If the adult continues to need protective
				services or placement after the renewal order expires, the department is
				responsible for seeking appointment of a guardian or conservator to assume
				responsibility for the adult's care or the department must petition for a
				non-emergency protective placement.
B. The department may file a petition for
				guardianship/conservatorship simultaneously with the application for renewal
				for continuity of services during the guardianship/conservatorship notice
				period of two weeks before the hearing on the merits can be held.
C. If a temporary guardian is appropriate, it
				may be possible to skip the renewal proceedings and immediately begin the
				guardianship.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.15 - EMERGENCY PLACEMENT BY A LAW ENFORCEMENT OFFICER

Current through Register Vol. 35, No. 13, July 16, 2024
A. The department may contact law enforcement
				to transport an incapacitated adult to an appropriate facility, without a court
				order, for an emergency placement.
(1) Law
				enforcement makes the determination that the emergency placement is required
				based upon law enforcement's personal observation and judgment in accordance
				with the Adult Protective Services Act.
(2) The department need not be present for
				the emergency removal to occur.
(3)
				The department is available upon request of law enforcement to accompany the
				officer to:
(a) help assess the adult's
				situation;
(b) assist in arranging
				suitable transporting; and
(c) help
				the officer locate and arrange an appropriate placement.
(4) Absent a court order allowing the
				caseworker to transport the adult, only a law enforcement officer is authorized
				to transport or delegate transport of an adult to an appropriate
				placement.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.16 - NON-EMERGENCY PROTECTIVE SERVICES/PLACEMENT

Current through Register Vol. 35, No. 13, July 16, 2024
A. The department may petition the court for
				a non-emergency protective services/placement of an adult. The court may issue
				a non-emergency protective services/placement order based upon a petition and
				supporting medical, psychological and social evaluations of the
				adult.
B. The APS attorney prepares
				the non-emergency protective services/placement petition based on information
				provided by the caseworker.
C. The
				department provides notice that a petition for non-emergency protective
				services/placement has been filed as follows:
(1) the adult receives written notice, in
				person, that a petition for non-emergency protective services/placement has
				been filed;
(2) notice is given at
				least 14 days prior to the scheduled hearing date;
(3) the adult's attorney and anyone who has
				physical custody of the adult is given notice; notice is also given to the
				adult's legal counsel, caretaker, guardian, conservator, surrogate, spouse,
				adult children or next of kin if such can be located with reasonable
				diligence.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.17 - GUARDIANSHIPAND CONSERVATORSHIP

Current through Register Vol. 35, No. 13, July 16, 2024
A. The
				department explores other options such as representative payee, power of
				attorney, surrogate decision-makers, trusts and living wills, prior to
				initiating guardianship or conservatorship proceedings.
B. The department recommends limiting the
				powers of a guardianship or conservatorship to only those areas necessary to
				accommodate the adult's limitations.
C. The APS attorney completes the
				guardianship/conservatorship petition based on information provided by the
				department caseworker.
D. The
				department provides written notice that a petition has been filed. A copy of
				the petition and any interim order is served personally on the alleged
				incapacitated adult and given to all interested parties at least 14 days before
				the date the hearing is scheduled. Interested parties entitled to notice
				include:
(1) the alleged incapacitated
				adult;
(2) the adult's spouse,
				parents and adult children;
(3) if
				there are no spouse, parents or adult children, at least one of his closest
				relatives;
(4) any person serving
				as the adult's guardian or conservator or who has primary responsibility for
				the person's care;
(5) any
				interested person who has filed a request for notice with the court;
				and
(6) any other person the court
				indicates.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.18 - TEMPORARY GUARDIANSHIP/CONSERVATORSHIP

Current through Register Vol. 35, No. 13, July 16, 2024
A. In emergency situations the court may
				appoint a temporary guardian/conservator prior to a hearing on a
				petition.
B. The department may
				petition the court to appoint a temporary guardian/conservator.
C. The adult is served within 24 hours of the
				appointment of a temporary guardian/conservator.
D. If subsequently granted to the temporary
				guardian/conservator by the court, the authority of any previously court
				appointed permanent guardian or conservator is suspended.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.19 - TERMINATION/REMOVAL OF A GUARDIAN OR CONSERVATOR

Current through Register Vol. 35, No. 13, July 16, 2024
The adult, his personal representative, the conservator or
				  guardian or any other interested persons, including the department, can
				  petition the court for removal of the guardian/conservator and request the
				  appointment of a successor, if in the adult's best interest. The court can
				  remove a guardian or conservator, modify, or terminate a guardianship or
				  conservatorship on the basis that the guardian/conservator:
A. is incapacitated;
B. has abused, neglected or exploited the
				adult;
C. is unable or unwilling to
				carry out his statutory duties;
D.
				continued function as guardian/conservator is not in the adult's best interest;
				or
E. the adult is no longer
				incapacitated and is capable of managing his person or finances and
				property.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.20 - EXPERT WITNESSES

Current through Register Vol. 35, No. 13, July 16, 2024
A. The
				caseworker gives the APS attorney advance notice of all witnesses, expert or
				otherwise, to be called to allow sufficient time to secure subpoenas and
				service.
B. The department
				reimburses for expert testimony, time and travel.
(1) The APS attorney approves the expert
				witness services before they are rendered.
(2) The department has payment guidelines
				that are followed except in areas of the state where lower rates may be
				negotiated. APS attorneys may approve higher rates under exceptional
				circumstances, budget permitting.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.21 - PENALTIES

Current through Register Vol. 35, No. 13, July 16, 2024
The department may impose, after notice as described in
				  Subsection A of 8.11.5.21 NMAC, civil penalties not to exceed $10,000 against a
				  facility, provider, or individual who fails to provide documents or certain
				  identifying information, interferes with an investigation, interferes with the
				  provision of voluntary or involuntary protective services, breaches
				  confidentiality, or fails to report abuse, neglect, or exploitation of an
				  incapacitated adult.
A. Upon
				determination by the adult protective services division that there has been a
				violation of the particular statutory section of the APS Act that allows for a
				particular penalty, the department may deliver to the facility, provider, or
				individual charged with the violation a notice of civil penalty assessment. The
				notice shall be delivered in person or by certified mail, return receipt
				requested. The notice shall include:
(1) the
				name and address of the person or entity to whom the penalty assessment is
				directed;
(2) the date of the civil
				penalty assessment;
(3) the basis
				for the civil penalty assessment;
(4) the amount of the civil penalty
				assessment;
(5) the date the civil
				penalty assessment is due for payment;
(6) notice of the right to request an
				administrative hearing before the department to challenge the civil penalty
				assessment; and
(7) a statement
				that the request for administrative hearing must be made in writing to the
				department's adult protective services division director within ten days of the
				notification.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.22 - REPRESENTATION

Current through Register Vol. 35, No. 13, July 16, 2024
A. A person or
				entity may appear as a party on his or their own behalf or by an attorney
				licensed to practice law in New Mexico.
B. The department may be represented by a
				duly authorized employee of the department or by an attorney licensed to
				practice law in New Mexico.
C. An
				attorney for a party must file an entry of appearance at least ten (10) working
				days before the commencement of any hearing. The attorney of record for a party
				shall be deemed to continue to be the attorney of record until written notice
				of withdrawal of representation is provided to the hearing officer and the
				parties.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.23 - REQUEST FOR HEARING

Current through Register Vol. 35, No. 13, July 16, 2024
An assessed party may request a hearing before the
				  department. The request for hearing shall be in writing and received by the
				  adult protective services division director no later than ten (10) working days
				  from the date that the assessed party receives the civil penalty assessment.
				  The request for hearing shall include:
A. the name and address of the assessed
				party;
B. a copy of the civil
				penalty assessment;
C. a brief
				statement of the factual or legal bases upon which the assessed party
				challenges the civil penalty assessment; and
D. a statement of the relief
				requested.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.24 - APPOINTMENT OF HEARING OFFICER

Current through Register Vol. 35, No. 13, July 16, 2024
Within five (5) working days of receipt of a timely request
				  for hearing, the adult protective services division director shall appoint a
				  hearing officer and shall send written notice of the appointment to the
				  parties.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.25 - NOTICE OF HEARING AND TIME LIMITS FOR HOLDING HEARING

Current through Register Vol. 35, No. 13, July 16, 2024
A. Within ten (10) working days of
				appointment, the hearing officer shall establish the date, time and place of
				the hearing. The hearing shall be no more than one hundred twenty (120)
				calendar days from the date of the civil penalty assessment unless the parties
				agree otherwise.
B. The hearing
				officer shall issue a notice of hearing at least thirty (30) calendar days
				before the hearing date, unless the parties agree to a shorter time frame. The
				notice shall be served on the parties by certified mail, return receipt
				requested. At the discretion of the hearing officer, the notice may be served
				by regular mail or other appropriate means on any other persons or entities
				that may have an interest in the proceedings.
C. The notice of hearing shall include:
(1) the name of the assessed party;
(2) the name and address of the adult
				protective services division director;
(3) the time, date, place, and nature of the
				hearing; and
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.26 - VENUE

Current through Register Vol. 35, No. 13, July 16, 2024
Unless the parties agree otherwise, the hearing shall be held
				  in the county where the events allegedly occurred that gave rise to the civil
				  penalty assessment.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.27 - POWERS AND DUTIES OF THE HEARING OFFICER

Current through Register Vol. 35, No. 13, July 16, 2024
The hearing officer shall have the authority to:
A. preside over hearings;
B. assure that hearings are properly
				recorded;
C. administer oaths and
				affirmations to the witnesses;
D.
				issue subpoenas and subpoenas
duces tecum
;
E. establish procedural schedules;
F. rule on motions and procedural
				requests;
G. require parties to
				attend hearings, pre-hearing conferences and settlement conferences;
H. require parties to produce for examination
				information or witnesses under their control;
I. require parties to express their positions
				on any issues in the proceedings;
J. require parties to submit legal briefs on
				any issues in the proceedings;
K.
				examine witnesses, and permit parties to examine witnesses;
L. determine the admissibility of
				evidence;
M. take official notice
				of any matter that is among the traditional matters of official or
				administrative notice in accordance with the terms of this rule;
N. recess any hearing from time to
				time;
O. regulate the course of the
				proceedings and the conduct of any participants;
P. take any action reasonably necessary to
				compel discovery or control the conduct of parties or witnesses;
Q. issue a recommended decision on the merits
				of a case, including findings of fact and conclusions of law;
R. approve settlements or other pre-hearing
				or post-hearing dispositions of cases by the parties, subject to final approval
				by the secretary; and
S. take any
				other action reasonably necessary to conclude the proceedings in a timely and
				fair manner.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.28 - APPLICABILITY OF RULES OF CIVIL PROCEDURE AND RULES OF EVIDENCE

Current through Register Vol. 35, No. 13, July 16, 2024
Although formal rules of civil procedure and evidence do not
				  apply, the hearing officer may look to the New Mexico rules of civil procedure
				  and the New Mexico rules of evidence for guidance during the course of the
				  proceedings. In addition, the hearing officer's recommended decision and the
				  secretary's final decision must be supported by a residuum of legally competent
				  evidence as would support a verdict in a court of law.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.29 - COMMUNICATIONS WITH DEPARTMENT AND HEARING OFFICER

Current through Register Vol. 35, No. 13, July 16, 2024
A. No party, representative of a party, or
				other person shall communicate off the record about the merits of a case with
				the department or the hearing officer unless the communication is in writing
				and a copy is provided to all parties to the proceedings.
B. The department's employees and the hearing
				officer shall not communicate off the record about the merits of a case with
				any party, representative of a party, or other person unless the communication
				is in writing and a copy is sent to all parties to the proceedings.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.30 - PRE-HEARING DISCLOSURES AND DISCOVERY

Current through Register Vol. 35, No. 13, July 16, 2024
A. Upon written request of any party, the
				hearing officer may require parties to comply with reasonable discovery
				requests. Oral and written depositions are prohibited except to preserve the
				testimony of persons who are sick or elderly, or persons who shall not be able
				to attend the hearing.
B. At least
				fifteen (15) calendar days before the hearing, each party shall file the
				following information with the hearing officer and send copies to the other
				parties:
(1) the name of each witness that
				the party shall or may call at the hearing;
(2) a summary of the anticipated direct
				testimony of each witness and, if the testimony includes expert opinions, a
				list of documents or other information that provides the bases for those
				opinions;
(3) an estimate of the
				length of time for the direct testimony of each witness; and
(4) a list of exhibits that shall or may be
				offered into evidence at the hearing; in addition, each party shall provide the
				other parties, but not the hearing officer, with copies of all exhibits that
				are identified on the exhibit list but have not been provided
				previously.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.31 - SUBPOENAS

Current through Register Vol. 35, No. 13, July 16, 2024
A. Pursuant to
				Section 28-17-19(C) NMSA 1978, upon the written request of a party, the hearing
				officer may issue subpoenas to compel attendance of witnesses or production of
				records in connection with proceedings before the department.
B. In order to subpoena a person who is not a
				party to the proceedings, or an agent or representative of a party, the party
				requesting the subpoena shall tender witness fees and mileage to the person
				subpoenaed in accordance with the terms of Rule 1-045 NMRA.
C. The hearing officer may condition a
				subpoena to permit the inspection and copying of records upon the party
				requesting the subpoena paying the person subpoenaed the reasonable cost of
				inspection and copying in advance.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.32 - EVIDENCE AND CONDUCT OF HEARING

Current through Register Vol. 35, No. 13, July 16, 2024
A.
				Hearings shall be conducted as follows:
(1)
				all hearings shall be open to the public, unless closing a hearing is necessary
				to protect the privacy of any person who is entitled to privacy protection
				under federal or state law;
(2)
				only relevant and material evidence is admissible at hearings; evidence shall
				be allowed if it is of a type commonly relied upon by reasonably prudent
				persons in the conduct of serious affairs;
(3) redundant evidence shall be
				excluded;
(4) witnesses shall be
				examined orally, under oath or affirmation; the parties and the hearing officer
				shall have the right to cross-examine witnesses; and
(5) the hearing officer may take official
				notice of any matter that is among the traditional matters of official or
				administrative notice, and may take official notice of any matter that is
				within the department's specialized knowledge; the hearing officer shall inform
				the parties of any matters officially noticed, and shall afford the parties an
				opportunity to contest any such matters.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.33 - RECORD OF HEARING

Current through Register Vol. 35, No. 13, July 16, 2024
A. Unless a
				hearing is stenographically recorded and the hearing officer orders otherwise,
				all hearings shall be recorded electronically by audio or audio-video. Any
				party desiring a copy of the audio or audio-video shall make a written request
				to the hearing officer and shall pay the cost of preparing a copy.
B. No later than five working days before a
				hearing, a party may request that the hearing be stenographically recorded at
				the cost of the requesting party. The request shall be in writing to the
				hearing officer and shall certify that the party has hired a certified court
				reporter and made all necessary arrangements for the court reporter to perform
				his or her job. In addition, the requesting party shall arrange for the court
				reporter to deliver two copies of the completed hearing transcript to the
				hearing officer. A court reporter's transcription becomes official when
				certified by the hearing officer. The requesting party shall pay the court
				reporter's fees, including any costs associated with providing the copies of
				the completed hearing transcript to the hearing officer.
C. Record. The record in a hearing shall
				consist of the following:
(1) the civil
				penalty assessment;
(2) the
				assessed party's request for hearing;
(3) the notice of appointment of the hearing
				officer;
(4) the notice of
				hearing;
(5) all pleadings and
				orders;
(6) any written information
				requested by the hearing officer and provided to him or her by the parties
				before the hearing;
(7) all
				exhibits;
(8) all
				stipulations;
(9) all statement of
				matters officially noticed by the hearing officer;
(10) the electronic audio or audio-video
				recording, or the court reporter's written transcription of the hearing
				prepared in accordance with this rule;
(11) the hearing officer's recommended
				decision;
(12) any motions for
				reconsideration and rulings thereon; and
(13) the secretary's final
				decision.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.34 - HEARING OFFICER'S RECOMMENDED DECISION

Current through Register Vol. 35, No. 13, July 16, 2024
A. The hearing officer shall present a
				written recommended decision to the secretary after the close of the hearing,
				and shall send copies to the parties. The recommended decision shall be based
				solely on the record and shall include proposed findings of fact and
				conclusions of law.
B. Any motions
				for reconsideration shall be submitted to the hearing officer within five
				working days from the date of service of the hearing officer's recommended
				decision. Such motions shall be decided without a hearing unless the hearing
				officer orders otherwise.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.35 - SECRETARY'S FINAL DECISION

Current through Register Vol. 35, No. 13, July 16, 2024
A. The
				secretary shall issue a final written decision within 10 working days of the
				receipt of the hearing officer's recommended decision or ruling on a motion for
				reconsideration. Based upon the evidence in the record, the secretary may
				affirm, reverse or modify the hearing officer's recommended decision as
				modified by any subsequent rulings of the hearing officer. The secretary's
				final decision shall inform the parties of their right to seek judicial
				review.
B. The secretary shall send
				copies of the final decision to the parties by certified mail, return receipt
				requested.
C. When the secretary's
				final decision affirms a civil penalty assessment by the adult protective
				services division, the assessed party shall pay the civil penalty to the
				department within thirty (30) calendar days from the date of the decision.
				Payment shall be in the form of cash, cashier's check or money order.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.36 - APPEAL

Current through Register Vol. 35, No. 13, July 16, 2024
A person who is aggrieved by the secretary's final decision
				  may appeal to the district court in accordance with the provisions of Section
				  39-3-1.1
				  NMSA 1978 and Rule 1-074 NMRA. The date of filing of the secretary's final
				  decision starts the time limit for appeal.
New Mexico Administrative Code › Title 8 - SOCIAL SERVICES › Chapter 11 - ADULT PROTECTIVE SERVICES › Part 5 - ADULT PROTECTIVE SERVICES LEGAL › Section 8.11.5.37 - NO AUTOMATIC STAY PENDING JUDICIAL REVIEW

Current through Register Vol. 35, No. 13, July 16, 2024
The filing of a notice of appeal shall not stay the
				  enforcement of the secretary's final decision. Upon a showing of substantial
				  hardship and irreparable harm, the secretary may grant a stay of the final
				  decision pending appeal. The district court may also grant a stay in accordance
				  with the provisions of Rule 1-074 NMRA.