New Mexico Administrative Code

Permanent.

April 1, 2004, unless a later date is cited in the history note at the end of a section.

This rule establishes a schedule of civil penalties that will be imposed on persons or entities that violate Section 28-17-19 NMSA 1978.

The following terms are used in this rule: A. "civil penalty assessment" means a civil monetary penalty imposed on a person or entity by the state long-term care ombudsman pursuant to the terms of Section 28-17-19 NMSA 1978 and this rule; B. "department" means the aging and long-…

A. Any person or entity that willfully interferes with the lawful actions of the long-term care ombudsman program shall be subjected to civil penalties up to a maximum of $5,000 per occurrence as follows:(1) failing to allow an ombudsman immediate entry into a long-term care faci…

A. Any person or entity that discriminates against, disciplines, or retaliates against any resident, employee, or other person for filing a complaint with the long-term care ombudsman program, or for providing information to, or otherwise cooperating with, the long-term care ombu…

Aging and Long-Term Services Department.

Within five (5) working days of receipt of a timely request for hearing, the secretary will appoint a hearing officer and will send written notice of the appointment to the parties.

A. Within ten (10) working days of appointment, the hearing officer will establish the date, time and place of the hearing. The hearing will be no more than one hundred twenty (120) calendar days from the date of the civil penalty assessment unless the parties agree otherwise. B.…

Unless the parties agree otherwise, the hearing will be held in the county where the events allegedly occurred that gave rise to the civil penalty assessment or where the long-term care facility in question is located.

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…

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 decis…

A. No party, representative of a party, or other person shall communicate off the record about the merits of a case with the secretary or the hearing officer unless the communication is in writing and a copy is provided to all parties to the proceedings. B. The secretary and the …

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 will not be able to attend t…

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. Hearings will be conducted as follows: (1) all hearings will 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 admissibl…

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 pa…

This rule applies to the general public and governs the hearings conducted by the aging and long-term services department to address civil penalties that have been assessed on persons or entities by the state long-term care ombudsman. It does not govern other hearings conducted b…

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 l…

A. The secretary shall issue a final written decision within ten (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 hearin…

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.

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 accorda…

Whenever an assessed party is in default of a civil penalty assessment, the state long-term care ombudsman may file an action in district court solely for the purpose of entry of judgment and enforcement of the civil penalty. The district court shall accept the civil penalty asse…

This rule is adopted pursuant to the terms of 42 U.S.C. Section 3058 g(j), Sections 28 - 4 - 6(B), 28 - 17 - 5 and 28 - 17 - 19 NMSA 1978 and Laws 2004, Ch. 23, Sec. 6(E).

Permanent.

April 1, 2004, unless a later date is cited in the history note at the end of a section.

This rule establishes a hearing procedure for a person or entity to challenge a civil penalty assessment that has been issued to it by the state long-term care ombudsman pursuant to the terms of Section 28-17-19 NMSA 1978 and applicable department regulations.

The following terms are used in this rule: A. "assessed party" means a person or entity that has been issued a civil penalty assessment by the state long-term care ombudsman; B. "civil penalty assessment" means a civil monetary penalty imposed on a person or entity by the state l…

A. A natural person may appear as a party on his or her own behalf or by an attorney licensed to practice law in New Mexico. B. The state long-term care ombudsman, corporations and other legal entities may be represented by a duly authorized officer or employee of the entity or b…

A. An assessed party may request a hearing before the department. The request for hearing shall be in writing and received by the secretary no later than ten (10) working days from the date that the assessed party receives the civil penalty assessment. The request for hearing sha…

Aging and Long-Term Services Department.

A facility shall cooperate to accommodate the installation of a monitoring device, provided the installation does not place undue burden on the facility. A. Reasonable accommodation includes, but is not limited to, the following: (1) providing a reasonably secure place to mount a…

A. Consent to the authorization for the installation and use of a monitoring device may be given only by a patient or surrogate. (1) If a patient has capacity to consent, only the patient may do so, notwithstanding the terms of any durable power of attorney, advance health-care d…

A. Consent of a roommate to the installation and use of a monitoring device by a patient or surrogate may be given only by the roommate or the roommate's surrogate. (1) If a roommate has capacity to consent, only the roommate may do so, notwithstanding the terms of any durable po…

A. The department shall prescribe forms for implementing the Patient Care Monitoring Act and this rule. No facility shall use any forms other than those prescribed by the department. B. A facility shall maintain the original copies of all completed forms relating to a patient for…

The form for the authorization of installation and use of a monitoring device shall provide for: A. consent of the patient or surrogate authorizing the installation and use of the monitoring device; B. notice to the facility of the patient's installation of a monitoring device an…

In any civil action against the facility, material obtained through the use of a monitoring device may not be used if the monitoring device was installed or used without the knowledge of the facility or without the prescribed form.

Compliance with the provisions of the Patient Care Monitoring Act shall be a complete defense against any civil or criminal action brought against the patient, surrogate or facility for the use or presence of a monitoring device.

Within six months of the effective date of the Patient Care Monitoring Act, all facilities shall provide to each patient or surrogate a form prescribed by the department explaining the provisions of the Patient Care Monitoring Act and giving each patient or surrogate a choice to …

The facility shall post a notice in a conspicuous place at the entrance to a room with a monitoring device that a monitoring device is in use in that room of the facility. The notice shall be posted at the facility's expense and shall state in English and Spanish: "WARNING: THIS …

No person or patient shall be denied admission to or discharged from a facility or be otherwise discriminated against or retaliated against because of a choice to authorize installation and use of a monitoring device. Any person who violates this section shall be subject to the p…

This rule applies to the general public.

Any person other than a patient or surrogate found guilty of intentionally hampering, obstructing, tampering with or destroying a monitoring device or a recording made by a monitoring device installed in a facility pursuant to the Patient Care Monitoring Act is guilty of a fourth…

This rule is adopted pursuant to the terms of Sections 28-4-6(B), 28-17-5 and 28-17-19 NMSA 1978, Law 2004, Ch. 23, Sec. 6(E) and Laws 2004, Ch. 53, Sec. 10.

Permanent.

July 15, 2004, unless a later date is cited in the history note at the end of a section.

This rule implements the provisions of the Patient Care Monitoring Act, Laws 2004, Ch. 53.

The following terms are used in this rule: A. "department" means the aging and long-term services department; B. "facility" means a long-term care facility licensed pursuant to the provisions of Section 24-1-5 NMSA 1978, other than an intermediate care facility for the mentally r…

A. A patient or surrogate may authorize installation and use of a monitoring device in a facility provided that: (1) the facility is given notice of the installation on a form prescribed by the department; (2) if the monitoring device records activity visually, such recording sha…

A. At the time of admission to a facility, a patient shall be offered the option to have a monitoring device, and a record of the patient's authorization or choice not to have a monitoring device shall be kept by the facility and shall be made accessible to the program. B. After …