SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR

SENATE BILL 334

50th legislature - STATE OF NEW MEXICO - first session, 2011

AN ACT

RELATING TO DISABLED AND ELDERLY RESIDENTIAL SERVICES; REQUIRING THAT OWNERS OR OPERATORS OF LONG-TERM CARE AND RESIDENTIAL CARE FACILITIES PROVIDE THE SECRETARY OF HEALTH WITH CERTAIN DISCLOSURES AS A CONDITION OF LICENSING OR RENEWAL OF LICENSURE; PROVIDING FOR DENIAL OF LONG-TERM CARE AND RESIDENTIAL FACILITY LICENSURE FOR PRIOR CRIMINAL ACTS OR CIVIL VIOLATIONS BY OWNERS OR OPERATORS; REQUIRING THE SECRETARY OF AGING AND LONG-TERM SERVICES AND THE SECRETARY OF HEALTH TO UNDERTAKE A STUDY OF THE HEALTH AND SAFETY NEEDS AND CHALLENGES OF RESIDENTS OF SUPPORTIVE RESIDENCES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. A new section of the Public Health Act is enacted to read:

     "[NEW MATERIAL] LONG-TERM CARE AND RESIDENTIAL CARE FACILITIES--DISCLOSURES--BACKGROUND INVESTIGATIONS--CONDITION OF LICENSING.--

          A. In addition to ensuring that a facility meets the requirements of Section 24-1-5 NMSA 1978, the department shall license a facility or renew its license only if the facility provides the department with a current annual disclosure statement that includes the following information:

                (1) the name and business address of the facility;

                (2) if the facility is owned or operated by a partnership, corporation or association, the names and addresses of its facility manager or administrator and all of its officers, directors, trustees and partners;

                (3) disclosure of any felony conviction of the owner or operator;

                (4) whether the owner or operator has been held liable or enjoined in a civil action in any jurisdiction by final judgment, if the civil action involved fraud, embezzlement, fraudulent conversion or misappropriation of property;

                (5) whether the owner or operator has had a state or federal license or permit to operate a facility suspended or revoked or had any state or federal agency or industry regulatory agency commence an action against the facility owner or operator after an investigation;

                (6) a statement as to whether the facility owner or operator is, or is associated with another entity that is, responsible for the financial and contractual obligations of the facility owner or operator, and the extent to which the associate entity is responsible;

                (7) the name and location of any other facility that the facility owns or operates or in which facility owner or operator owns any interest;

                (8) if the facility owner or operator is a corporation, a copy of the articles of incorporation; if the facility owner or operator is a partnership or other unincorporated association, a copy of the partnership agreement, articles of association or other membership agreement; and if the facility owner or operator is a trust, a copy of the trust agreement or instruments; and

                (9) resumes of the facility owner or operator's officers, directors, trustees or partners.

          B. The department shall deny a license to a facility if the facility owner or operator, its facility manager or administrator or any of its officers, directors, trustees or partners, within ten years prior to the date of application, was convicted of any of the following felonies:

                (1) homicide;

                (2) trafficking controlled substances;

                (3) kidnapping, false imprisonment, aggravated assault or aggravated battery;

                (4) rape, criminal sexual penetration, criminal sexual contact, incest, indecent exposure or other related sexual offenses;

                (5) crimes involving adult abuse, neglect or financial exploitation;

                (6) crimes involving child abuse or neglect;

                (7) robbery, larceny, burglary, fraud, extortion, forgery, embezzlement, credit card fraud or receiving stolen property; or

                (8) an attempt, solicitation or conspiracy involving any of the felonies in this subsection.

          C. The secretary may deny a license or renewal of a license after a finding based upon substantial evidence that a facility's owner or operator for any of the following reasons:

                (1) a conviction for a felony other than those listed in Subsection B of this section;

                (2) failure to comply with any provision of governing administrative rules relating to facilities;

                (3) failure to allow a survey or inspection by a licensing authority;

                (4) the employment of any staff member who is under the influence of alcohol or narcotics or who has been convicted of a felony listed in Subsection B of this section;

                (5) misrepresentation or falsification of any information or application forms or other documents to a licensing authority;

                (6) repeated violations of rules relating to facilities;

                (7) failure to provide the required care and services as provided in rules relating to facilities;

                (8) failure to provide an acceptable plan of correction within the time period established by a licensing authority;

                (9) failure to correct deficiencies within the time period established by a licensing authority;

                (10) failure to comply with incident reporting required by the licensing authority;

                (11) failure to pay any civil monetary penalties levied;

                (12) exceeding licensed capacity; or

                (13) abuse, neglect or exploitation of any patient, client or resident.

          D. In determining whether a license or renewal will be denied by the secretary due to any of the factors listed in Paragraphs (1) through (13) of Subsection C of this section, the secretary may consider:

                (1) the total number of convictions or violations;

                (2) the time elapsed since the last conviction or violation;

                (3) the circumstances of a crime or violation;

                (4) activities evidencing rehabilitation, including substance abuse or other rehabilitation programs;

                (5) whether conviction for a crime was expunged by the court or whether an unconditional pardon was granted;

                (6) evidence that the person convicted or found in violation of a rule poses no risk of harm to the health and safety of residents; and

                (7) the age of the person convicted or found in violation of a rule at the time of the conviction or violation.

          E. As used in this section:

                (1) "facility" means a residential care facility or a long-term care facility;

                (2) "long-term care facility" means an intermediate care facility, an intermediate care facility for the mentally retarded or a skilled nursing facility;

                (3) "operator" means a person who carries out the daily administration, management and maintenance for the actual operation of a facility;

                (4) "owner" means one or more persons, jointly or severally, in whom is vested:

                     (a) all or part of the legal title to property, but shall not include the limited partner in an association regulated under the Uniform Revised Limited Partnership Act; or

                     (b) all or part of the beneficial ownership and a right to present use and enjoyment of the premises and includes a mortgagee in possession and the lessors; and

                (5) "residential care facility" means:

                     (a) any care facility institution required to be licensed under state law as a facility by the department, whether proprietary or nonprofit, including skilled long-term care facilities;

                     (b) a facility that is licensed by the department as an assisted living facility; or

                     (c) any residential care provider serving recipients of services under the coordinated long-term services home- and community-based medicaid waiver or that is an intermediate care facility for the mentally retarded, but "residential care facility" does not include any other residential care provider for developmentally disabled individuals."

     SECTION 2. [NEW MATERIAL] DISABLED AND ELDERLY RESIDENCES--STUDY--REPORTING.--

          A. The secretary of aging and long-term services and the secretary of health shall conduct a study of the health and safety needs and challenges of residents of supportive residences in the state and provide recommendations for legislation regarding the operation of supportive residences in a manner that provides quality living environments and greater protection from abuse, fraud and exploitation for residents of supportive residences. By October 1, 2011, the secretary of aging and long-term services and the secretary of health shall report their findings and recommendations to the legislative health and human services committee. These recommendations shall include:

                (1) whether supportive residences should be licensed or certified as supportive residences and an identification of the proper state agency for licensure or certification and related rulemaking;

                (2) the types of disclosures and background checks that should be required, if any, of owners and operators of supportive residences;

                (3) the type and frequency of any investigations of supportive residences, and the agency best suited to perform them; and

                (4) identification of funding sources for carrying out any requirements for licensure, certification, investigation or other recommended actions to protect residents and maintain a quality living environment in supportive residences. 

          B. As used in this section, "supportive residence" means a residence that:

                (1) operates as a residence exclusively for disabled individuals or individuals over the age of fifty-five or provides on-site attendant, medical, meal or housekeeping services pursuant to a lease or other agreement; and

                (2) is not a residence regulated pursuant to the provisions of the Continuing Care Act.

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