The Lento Law Firm Can Help if Your Nursing Assistant Certification is in Jeopardy
The Lento Law Firm's Professional License Defense Team helps certified nursing assistants and nurse aides whose certification and career prospects are threatened by allegations of misconduct. If you are facing damaging allegations, call the Lento Law Firm at 888.535.3686 or contact us online to schedule a consultation.
As a certified nurse aide in New Mexico, allegations of misconduct, neglect, or abuse can seriously hurt your reputation and limit future career opportunities in the healthcare profession. Federal law mandates that each state that participates in Medicaid must report these allegations to its nurse aide registry. Since the New Mexico Department of Health requires employers to screen potential CNA employees against this registry, allegations of misconduct have the potential to end your career.
If you're concerned for your CNA career, don't put your future in the hands of just anyone. Hire the professional license defense attorneys at the Lento Law Firm. With nationwide experience helping professionals facing disciplinary action, the Lento Law Firm will work tirelessly to help you reach the best possible outcome for your future.
Certified Nurse Aides in New Mexico
Unlike licensed practical nurses, registered nurses, nurse practitioners, and other licensed healthcare professionals, certified nursing assistants or nurse aides are not regulated by the New Mexico Board of Nursing. They are also not included in the Employee Abuse Registry, which contains the criminal record information of caregivers in New Mexico who are not licensed professionals or certified nurse aides. Instead, the Certified Nurse Aide Registry in New Mexico is overseen by the state's Department of Health.
Unless they have worked as a CNA in another state, completed an RN or LPN program, or received sufficient military training, the majority of certified nurse aides in New Mexico must undergo at least 75 hours of training. They must also complete a New Mexico Certified Nurse Aide (CNA) Competency Exam in order to receive their certification.
What Allegations Can Put Your Career as a CNA at Risk?
Allegations of abuse, neglect, and exploitation can damage your career as a certified nurse aide in New Mexico.
The New Mexico Administrative Code 16.12.20.7 defines these allegations as follows:
- "Abuse" means any act or failure to act performed intentionally, knowingly, or recklessly that causes or is likely to cause harm to a resident.
This includes any physical contact that harms a resident as well as any misuse of restraint or confinement. Inappropriate confinement can include physical restraint, chemical restraint, and even isolation.
Any potentially harmful conduct preformed by a certified nurse aid that conflicts with a physician's orders may also be classified as abuse.
Furthermore, inappropriate medical conduct that can cause harm to a patient may be classified as abuse. This includes both physical and psychological harm, such as any mental distress caused by prolonged isolation or punishment .
Menacing behavior and threats made by certified nurse aides may also be considered abuse. This is especially true when said acts result in fear and emotional or psychological trauma.
- "Neglect" means subject to the resident's right to refuse treatment and subject to the caregiver's right to exercise sound medical discretion, the grossly negligent.
Cases of neglect may include instances where a certified nurse aid fails to provide a patient with anything that is needed to facilitate their health and safety. This includes care and service as well as treatments and medication.
Cases of neglect can also occur when a certified nurse aid does not take proper precautions to protect the health and safety of a patient or does to provide proper supervision when necessary.
The law does stipulate that certified nurse aids accused of abuse can claim a valid defense if they can show that the accused instance(s) of neglect were “caused by factors beyond his or her control.”
- "Exploitation" of a resident consists of the act or process, performed intentionally, knowingly, or recklessly, of using a resident's property for another person's profit, advantage, or benefit without legal entitlement to do so.
The Lento Law Firm represents certified nurse aides accused of abuse, neglect, or exploitation from Aztec to Roswell and Santa Fe to Las Cruces. If you are a CNA in New Mexico who has been notified of an allegation of any of the above, call 888.535.3686 to schedule a consultation as soon as possible.
The Nature of Hearings for Certified Nurse Aides in New Mexico
The State of New Mexico's regulations for certified nurse aides include the ability of the accused CNA to request a hearing. However, these hearings are much different from criminal or civil court proceedings with their own rules and procedures. In fact, although "reasonable" evidence may be admitted in these hearings, the rules of evidence do not apply. Additionally, the findings of the hearing officer "need not contain formal findings of fact or conclusions of law." (16.12.20.17).
The final decision of these hearings will determine whether you will lose your certification and whether the accusations will be reported to the certified nurse aide registry, not whether you will face jail time or monetary liability. That does not mean, however, that the stakes are not high. These matters are extremely important for your reputation and career as a certified nurse aide.
As noted in a previous case of a certified nurse aid accused of abuse in Albuquerque:
States that provide Medicaid coverage, so effectively every state including New Mexico, are required by federal law to create and a maintain a registry of certified nurse aids. The list must include the names and credentials of anyone who has completed the proper training and evaluations and who is eligible to obtain a job as a certified nurse aid in a nursing home. If a CNA is found to have abused, neglected, or exploited a resident under their care, this information is also required by federal law to be reported on that registry. Since these requirements are tied to the federal Medicaid program, an essential healthcare program in every state, individual states do not have leeway in terms of deciding who and what must be reported on the registry.
The process for certified nurse aides accused of misconduct in New Mexico also tends to move along quickly, which is why you should act fast and contact an experienced professional license defense attorney team as soon as you are notified of an accusation. Call the Lento Law Firm at 888.535.3686 today.
What Are the Hearing Requirements for Certified Nurse Aides in New Mexico?
New Mexico Administrative Code 16.12.20 lays out the hearing requirements for certified nurse aides.
The Health Facility Licensing and Certification Bureau of the New Mexico Department of Health is required to notify the nurse aide of the abuse, neglect, or exploitation allegations against them. The nurse aide must also be granted the opportunity to participate in a hearing where they can defend themselves against these allegations. If the allegations are then substantiated, both the nurse aide themselves and the aide registry must be notified of the findings.
Hearing procedures are elaborated on as follows:
Investigation and Notification
Once allegations are made, the Health Facility Licensing and Certification Bureau of the New Mexico Department of Health (the "survey agency") conducts an initial review. If there is reason to believe, "through oral or written evidence," that the allegations are warranted, an official investigation will take place.
The implicated CNA and their employer will then be notified by mail of the details of the allegations and the date(s) that the alleged abuse, neglect, or exploitation took place. The CNA will also be notified of their right to request a hearing and the fact that they have 30 days from the date of the notice to do so in writing.
Finally, the CNA will be made aware of the fact that if they fail to request a hearing, or if after the hearing any accusations are substantiated, the survey agency will be required to report the findings to the New Mexico nurse aide registry.
Pre-Hearing
The implicated CNA then has the right to request an administrative hearing, which will take place within 30 days of the Department's receipt of the request. The CNA also has the right to retain an attorney to represent them at the hearing. The Department of Health will appoint an impartial hearing officer, who is not involved with the situation in any way, to conduct a hearing and issue a report with a recommendation for the Department of Health's final decision.
The accused CNA will be allowed to read relevant documents from the Department prior to the hearing unless the documents are protected by confidentiality or privilege. The CNA and the Department will also discuss which witnesses will be called and the "general subject matter of their testimony" prior to the hearing.
Hearing
The hearing will be conducted in public, where witnesses will give their testimonies under oath and be subjected to cross-examination, and the Department of Health has the burden of proving the misconduct.
Officer Recommendations and Final Decisions
After the hearing, the designated officer will mail a report and recommended decision to the CNA and the Secretary of the Department of Health within five days. The Secretary or their designee will then make a final decision and notify all parties involved.
Report of Findings
If, in their final decision, the Secretary determines that the CNA has, in fact, committed the accused abuse, neglect, or exploitation, they must report these findings to the CNA, the employer, and the nurse aide registry. At this point, the accused will no longer be certified or able to work as a CNA.
Unlike the employee abuse registry rules, the CNA registry rules dictate that the final decision be reported on the registry regardless of the severity of the abuse, exploitation, or neglect.
Furthermore, federal law dictates that the state must disclose all adverse findings placed on the registry to any requesters, preventing the accused from finding future employment as a CNA.
Can You Appeal the Final Decision?
The CNA can appeal the final decision within 30 days of its issue to the first judicial district court in Santa Fe. However, if the CNA was found to have committed the accused action(s), the findings must still be reported to the registry within 10 days of the decision, regardless of whether the CNA files an appeal. An appeal does not stay the final action. (16.12.20.22)
Can You Have Your Name Removed from the Nurse Aide Registry?
Typically, the state will remove a CNA's name from the registry if they have not worked in any nursing-related capacity for two consecutive years. However, if the CNA was found to have committed any act of abuse, neglect, or exploitation, their name and case will remain on the registry indefinitely.
After the final decision is issued, the CNA can petition the Department of Health to have their name and case removed from the nurse aide registry, but only in cases of neglect. In accordance with federal law, the CNA cannot petition to have their name removed from the registry for cases of abuse. This fact was upheld in a 2010 hearing when the New Mexico Department of Health refused to consider the removal of an accused nurse aid's name from the registry, citing the state's adherence to the federal mandate.
According to the New Mexico Administrative Code (16.12.20.23), in cases where the final action determined an instance of neglect, the CNA must remain on the registry for one year before they can petition for a removal, and the petition must show that they have not exhibited a pattern of abuse or neglect in either their personal or professional life.
If the Department approves the petition, the CNA will be put on probation for a designated period, during which time they may be mandated to complete additional training before their license can be reinstated and their case is removed from the registry.
Why You Need an Experienced License Defense Attorney
If your New Mexico certification as a nurse's aide is threatened, it is important to note that the Department of Health can take significant action to protect future patients, regardless of whether or not you are guilty of the accused action. The fact that federal law mandates final determinations of abuse, neglect, or exploitation be reported to the registry leaves you and your future career prospects as a certified nursing assistant or nurse aide vulnerable. Furthermore, the fact that the severity of the incident is not taken into consideration when the Department of Health is mandated to report the findings to the registry means that a wide variety of incidences and accusations can seriously jeopardize your certification.
With nationwide experience, the premier team of license defense attorneys at the Lento Law Firm will know how to investigate the accusations against you, collect evidence, help you prepare a response, and navigate each step of the hearing process. A skilled attorney can also help you through an appeals process if necessary and will significantly increase your chances of protecting your certification and reputation and keeping accusations off the registry. If you are a certified nurse aide facing accusations of abuse, neglect, or exploitation, don't wait until you receive an unfavorable final decision before contacting an attorney. Contact the Lento Law Firm online today to schedule a consultation.
2011 Hearing of a CNA Accused of Abuse in Bernalillo County, New Mexico
In 2010, Patricia Victor, a certified nurse aide at the Albuquerque Heights Healthcare and Rehabilitation facility, was accused of abusing four residents in the hospice unit of the facility. She requested a hearing but did not bring an attorney with her. She told the hearing officer that she would first testify on her own behalf and contact an attorney later on if she needed one.
Hearing
An investigator with the Department of Health, Ms. Rachel Moorhead Lopez, testified at the hearing. She recounted the interviews that she conducted at the nursing home regarding the incident and testified that multiple residents and staff members accused Ms. Victor of multiple instances of abuse.
Ms. Victor, without an attorney present, also testified on her own behalf and denied all of the accusations against her. In his report and recommendations, the impartial hearing officer assigned to the case determined that Ms. Victor's denial was not credible. The Secretary of Health then adopted the hearing officer's recommendations and had findings of abuse placed on the nurse aide registry.
Outcome
The consequences of this decision were officially stated as follows:
"It is that the Petitioner may no longer be a certified nurse aide because the evidence overwhelmingly showed that she abused ABQ Heights' nursing home residents. That does not mean she may not work in some other capacity as a healthcare worker. The nurse aide registry only applies to certified nurse aides."
The outcome of this hearing serves as a clear indication of the importance of retaining an experienced license defense attorney as soon as you are notified of any allegations. Although Ms. Victor requested an appeal after the final determination of the hearing, the Secretary of Health was still obligated to report the adverse findings to the registry.
As explained in the Department of Health's Response to Petitioners Rule 1-075 Statement of Review Issues, federal law dictates that if a nurse aid has had a reasonable opportunity for a hearing and has been found to have abused a resident, the state must report the findings in order to protect other residents. The federal government believes that "abuse is abuse" and that if the state were to wait for all appeals to be finalized before reporting the findings, the safety of other nursing home residents could be in jeopardy. New Mexico strictly adheres to this judgement since failing to do so could put its Medicaid program eligibility at risk.
Do not wait until your career has been damaged to retain the representation that you deserve. Call the Lento Law Firm at 888.535.3686 today and schedule a consultation with our Professional License Defense Team.
The Lento Law Firm Serves Certified Nurse Aides at Hospitals and Care Facilities Throughout New Mexico
The Lento Law Firm's Professional License Defense Team serves certified nurse aides at the following major employers across the state:
- Presbyterian Hospital in Albuquerque
- University of New Mexico (UNM) Hospital in Albuquerque
- Raymond G. Murphy VA Medical Center in Albuquerque
- Santa Fe Indian Hospital
- Christus St. Vincent Regional Medical Center in Santa Fe
- Presbyterian Rust Medical Center in Rio Rancho
- Mountain View Regional Medical Center in Las Cruces
- Eastern New Mexico Medical Center in Roswell
- Fiesta Park Wellness & Rehabilitation in Albuquerque
- Albuquerque Heights Healthcare and Rehabilitation
- Bear Canyon Rehabilitation Center in Albuquerque
- Retirement Ranches in Clovis
- Aztec Healthcare
- Casa de Oro Center in Las Cruces
- Casa Arena Blanca Nursing Center in Alamogordo
- Belen Meadows Healthcare and Rehabilitation Center
- Welbrook Senior Living in Farmington
This is a non-exhaustive list, as the Lento Law Firm helps CNAs across New Mexico as well as across the nation.
How the Lento Law Firm's Professional License Defense Team Can Help
The Lento Law Firm's Professional License Defense Team have nationwide experience serving certified nursing assistants and nurse aides facing disciplinary proceedings. They also have particular experience with hearings and appeal proceedings, and their cooperative approach will help you reach the best possible outcome for your career as a certified nurse aide in New Mexico. When it comes to securing your future, the stakes don't get much higher.
When you hire the Lento Law Firm, you can rest easy knowing that you're in the best possible hands. Call 888.535.3686 or contact us online today.
