0001| AN ACT | 0002| RELATING TO LONG-TERM CARE; AMENDING THE LONG-TERM CARE OMBUDSMAN ACT; | 0003| CONFIRMING POWERS OF THE STATE AGENCY ON AGING TO CONDUCT EVALUATIONS. | 0004| | 0005| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0006| Section 1. Section 28-4-6 NMSA 1978 (being Laws 1979, Chapter | 0007| 203, Section 3, as amended) is amended to read: | 0008| "28-4-6. AGENCY POWERS.-- | 0009| A. The state agency on aging: | 0010| (1) may receive on behalf of the state any gifts, | 0011| donations or bequests from any source to be used in carrying out its | 0012| duties; and | 0013| (2) is designated as the state agency for handling | 0014| all programs of the federal government related to the aged, except | 0015| those designated by law as the responsibility of another state agency, | 0016| and may enter into agreements and contracts with agencies of the | 0017| federal government for this purpose. | 0018| B. The state agency on aging may adopt and promulgate such | 0019| reasonable rules and regulations as are deemed necessary to carry out | 0020| its duties. Unless otherwise provided by law, no rule or regulation | 0021| affecting any person or agency outside the state agency on aging shall | 0022| be adopted, amended or repealed without a public hearing on the | 0023| proposed action before the director of the state agency on aging or a | 0024| hearing officer designated by him. The public hearing shall be held | 0025| in Santa Fe unless otherwise permitted by statute. Notice of the | 0001| subject matter of the rule or regulation, the action proposed to be | 0002| taken, the time and place of the hearing, the manner in which | 0003| interested persons may present their views and the method by which | 0004| copies of the proposed rule or regulation or proposed amendment or | 0005| repeal of an existing rule or regulation may be obtained shall be | 0006| published once at least thirty days prior to the hearing in a | 0007| newspaper of general circulation and mailed at least thirty days prior | 0008| to the hearing date to all persons who have made a written request for | 0009| advance notice of hearing. The director of the state agency on aging | 0010| shall also provide such notice to the director of each senior citizen | 0011| center no later than forty days prior to the public hearing. All | 0012| rules and regulations shall be filed in accordance with the State | 0013| Rules Act. | 0014| C. To ensure that the health and safety needs of the | 0015| state's aged population are being met, the state agency on aging may | 0016| conduct unannounced quality care evaluations of health and long-term | 0017| care facilities that provide services to the aged, including the use | 0018| of undercover patients or employees. Any employee or contractor of | 0019| the state agency on aging who participates in such an evaluation shall | 0020| be immune from liability in any civil action related to the | 0021| evaluation, provided it is conducted in good faith. The purpose of | 0022| this subsection is to confirm and clarify the authority of the state | 0023| agency on aging to conduct quality care evaluations to protect the | 0024| interests of the state's aged population." | 0025| Section 2. Section 28-17-3 NMSA 1978 (being Laws 1989, Chapter | 0001| 208, Section 3) is amended to read: | 0002| "28-17-3. DEFINITIONS.--As used in the Long-Term Care Ombudsman | 0003| Act: | 0004| A. "adult protective services" means the children, youth | 0005| and families department pursuant to the Adult Protective Services Act; | 0006| B. "agency" means the state agency on aging; | 0007| C. "care" means assistance with the activities of daily | 0008| living, including eating, dressing, oral hygiene, bathing, mobility, | 0009| toileting, grooming, taking medications, transferring from a bed or | 0010| chair and walking; | 0011| D. "director" means the director of the state agency on | 0012| aging; | 0013| E. "licensing and certification" means the licensing and | 0014| certification bureau of the public health division of the department | 0015| of health; | 0016| F. "long-term care facility" means any residential facility | 0017| that provides care to one or more persons unrelated to the owner or | 0018| operator of the facility, including: | 0019| (1) a skilled nursing facility; | 0020| (2) an intermediate care nursing facility, including | 0021| an intermediate care facility for the mentally retarded; | 0022| (3) a nursing facility; | 0023| (4) an adult residential shelter care home; | 0024| (5) a boarding home; | 0025| (6) any other adult care home or adult residential | 0001| care facility; | 0002| (7) a continuing care community; | 0003| (8) any swing bed in an acute care facility or | 0004| extended care facility; and | 0005| (9) any adult day care facility; | 0006| G. "office" means the office of the state long-term care | 0007| ombudsman; | 0008| H. "Older Americans Act" means the federal Older Americans | 0009| Act; | 0010| I. "ombudsman" means an individual trained and certified to | 0011| act as a representative of the office of the state long-term care | 0012| ombudsman; | 0013| J. "ombudsman coordinator" means the coordinator of a | 0014| regional or local ombudsman program designated by the office of the | 0015| state ombudsman; | 0016| K. "program" means the New Mexico long-term care ombudsman | 0017| program; | 0018| L. "resident" means any patient, client or person residing | 0019| in and receiving care in a long-term care facility; | 0020| M. "state ombudsman" means the state long-term care | 0021| ombudsman; and | 0022| N. "surrogate decision maker" means a legally appointed | 0023| agent, guardian or surrogate who is authorized to act on behalf of a | 0024| resident." | 0025| Section 3. Section 28-17-4 NMSA 1978 (being Laws 1989, Chapter | 0001| 208, Section 4) is amended to read: | 0002| "28-17-4. ESTABLISHMENT OF THE OFFICE OF THE STATE LONG-TERM | 0003| CARE OMBUDSMAN--GENERAL DUTIES OF THE OFFICE.-- | 0004| A. Pursuant to the Older Americans Act, the agency shall | 0005| establish and operate an "office of the state long-term care | 0006| ombudsman" either directly or by contract or other arrangement with | 0007| any public agency or nonprofit private organization; except that no | 0008| contract or arrangement may be made with any entity that is | 0009| responsible for licensing or certifying long-term care services or an | 0010| association or association affiliate of long-term care facilities or | 0011| of any other residential facilities. | 0012| B. The director shall designate the state ombudsman. | 0013| C. The ombudsman shall serve on a full-time basis, and | 0014| shall, personally or through representatives of the office: | 0015| (1) identify, investigate and resolve complaints that | 0016| are made by, or on behalf of, residents and that relate to action, | 0017| inaction or decisions that may adversely affect the health, safety, | 0018| welfare or rights of the residents, including the welfare and rights | 0019| of the residents with respect to the appointment and activities of | 0020| guardians and representative payees, of: | 0021| (a) providers, or representatives of providers, | 0022| of long-term care services; | 0023| (b) public agencies; or | 0024| (c) health and social service agencies; | 0025| (2) provide services to assist the residents in | 0001| protecting the health, safety, welfare and rights of the residents; | 0002| (3) inform the residents about means of obtaining | 0003| services; | 0004| (4) ensure that the residents have regular and timely | 0005| access to the services provided through the office and that the | 0006| residents and complainants receive timely responses from | 0007| representatives of the office; | 0008| (5) represent the interests of the residents before | 0009| governmental agencies and seek administrative, legal and other | 0010| remedies on behalf of residents to protect the health, safety, welfare | 0011| and rights of the residents; | 0012| (6) provide administrative and technical assistance | 0013| to designated regional and local ombudsman programs and assist the | 0014| programs in participating in the program; | 0015| (7) analyze, comment on and monitor the development | 0016| and implementation of federal, state and local laws, regulations and | 0017| other governmental policies and actions that pertain to the health, | 0018| safety, welfare and rights of the residents, with respect to the | 0019| adequacy of long-term care facilities and services in the state and | 0020| recommend any changes in such laws, regulations, policies and actions | 0021| as the office determines to be appropriate; and facilitate public | 0022| comment on the laws, regulations, policies and actions; | 0023| (8) provide for training representatives of the | 0024| office, promote the development of citizen organizations to | 0025| participate in the program and provide technical support for the | 0001| development of resident and family councils to protect the well-being | 0002| and rights of residents; | 0003| (9) prepare an annual report: | 0004| (a) describing the activities carried out by the | 0005| office in the year for which the report is prepared; | 0006| (b) containing and analyzing the data collected; | 0007| (c) evaluating the problems experienced by, and | 0008| the complaints made by or on behalf of, residents; | 0009| (d) containing recommendations for improving | 0010| quality of the care and life of the residents, and protecting the | 0011| health, safety, welfare and rights of the residents; | 0012| (e) analyzing the success of the program, | 0013| including success in providing services to residents of board and care | 0014| facilities and other similar adult care facilities; | 0015| (f) identifying barriers that prevent the | 0016| optimal operation of the program; and | 0017| (g) providing policy, regulatory and legislative | 0018| recommendations to solve identified problems, to resolve complaints, | 0019| to improve the quality of care and life of residents, to protect the | 0020| health, safety, welfare and rights of residents and to remove the | 0021| barriers; | 0022| (10) coordinate ombudsman services with the | 0023| protection and advocacy systems for individuals with developmental | 0024| disabilities and mental illness; | 0025| (11) provide such information as the office | 0001| determines to be necessary to public and private agencies, legislators | 0002| and other persons regarding the problems and concerns of older | 0003| individuals residing in long-term care facilities; and recommendations | 0004| related to the problems and concerns; and | 0005| (12) carry out such other activities as the state | 0006| ombudsman determines to be appropriate." | 0007| Section 4. Section 28-17-6 NMSA 1978 (being Laws 1989, Chapter | 0008| 208, Section 6) is amended to read: | 0009| "28-17-6. REGIONAL AND LOCAL LONG-TERM CARE OMBUDSMAN | 0010| PROGRAMS.-- | 0011| A. In carrying out the duties of the office, the state | 0012| ombudsman may designate an entity as a regional or local ombudsman | 0013| entity, and may designate an employee or volunteer to represent the | 0014| entity. An individual so designated shall, in accordance with the | 0015| policies and procedures established by the office and the agency: | 0016| (1) provide services to protect the health, safety, | 0017| welfare and rights of residents; | 0018| (2) ensure that residents in the service area of the | 0019| entity have regular, timely access to representatives of the program | 0020| and timely responses to complaints and requests for assistance; | 0021| (3) identify, investigate and resolve complaints made | 0022| by or on behalf of residents that relate to action, inaction or | 0023| decisions that may adversely affect the health, safety, welfare or | 0024| rights of the residents; | 0025| (4) represent the interests of residents before | 0001| government agencies and seek administrative, legal and other remedies | 0002| to protect the health, safety, welfare and rights of the residents; | 0003| (5) review and, if necessary, comment on any existing | 0004| and proposed laws, regulations and other government policies and | 0005| actions, that pertain to the rights and well-being of residents; | 0006| (6) facilitate the ability of the public to comment | 0007| on the laws, regulations, policies and actions; | 0008| (7) support the development of resident and family | 0009| councils; and | 0010| (8) carry out other activities that the ombudsman | 0011| determines to be appropriate. | 0012| B. To be eligible to be designated as regional or local | 0013| ombudsman entities, and individuals eligible to be designated as | 0014| representatives of such entities, the entities shall: | 0015| (1) have demonstrated capability to carry out the | 0016| responsibilities of the office; | 0017| (2) be free of conflicts of interest; | 0018| (3) in the case of the entities, be public or | 0019| nonprofit private entities; and | 0020| (4) meet such additional requirements as the state | 0021| ombudsman may specify." | 0022| Section 5. Section 28-17-9 NMSA 1978 (being Laws 1989, Chapter | 0023| 208, Section 9) is amended to read: | 0024| "28-17-9. REFERRALS.-- | 0025| A. When abuse, neglect or exploitation of a patient, | 0001| resident or client of a long-term care facility is suspected, the | 0002| office shall make a referral to adult protective services and | 0003| licensing and certification, where appropriate. The office shall | 0004| coordinate with adult protective services and licensing and | 0005| certification pursuant to any investigation of abuse, neglect or | 0006| exploitation undertaken by those agencies. | 0007| B. The following state agencies or boards shall endeavor to | 0008| give priority to any complaint referred to them by the office: | 0009| (1) licensing and certification; | 0010| (2) the children, youth and families department; | 0011| (3) the New Mexico board of medical examiners; | 0012| (4) the board of nursing; | 0013| (5) the board of nursing home administrators; or | 0014| (6) the board of pharmacy. | 0015| The office shall coordinate its efforts with those of any state agency | 0016| or board to which it makes investigation referrals. | 0017| C. Any state agency or board which responds to a complaint | 0018| against a long-term care facility or licensed individual that was | 0019| referred to the agency by the office shall forward to the office | 0020| copies of related inspection reports and plans of correction, notice | 0021| of any citations and sanctions levied against the long-term care | 0022| facility or the licensed individual." | 0023| Section 6. Section 28-17-11 NMSA 1978 (being Laws 1989, Chapter | 0024| 208, Section 11) is amended to read: | 0025| "28-17-11. ACCESS TO AGENCY RECORDS.--Upon request, the office | 0001| shall have access to records of any state or local government agency, | 0002| including copies of all licensing and certification records relating | 0003| to long-term care facilities as necessary to carry out its | 0004| responsibilities under the Long-Term Care Ombudsman Act and which | 0005| records are available to the patient, resident or client, except for | 0006| records and information unavailable pursuant to Section 7-1-8 NMSA | 0007| 1978." | 0008| Section 7. Section 28-17-13 NMSA 1978 (being Laws 1989, Chapter | 0009| 208, Section 13) is amended to read: | 0010| "28-17-13. ACCESS TO RECORDS OF PATIENTS, RESIDENTS OR | 0011| CLIENTS.-- | 0012| A. In order for the office to carry out its | 0013| responsibilities under the Long-Term Care Ombudsman Act, the office | 0014| shall have access to the medical and personal records of a patient, | 0015| resident or client of a long-term care facility that are retained by | 0016| the facility. If the patient, resident or client: | 0017| (1) has the ability to consent in writing, access may | 0018| only be obtained by the written consent of the patient, resident or | 0019| client; | 0020| (2) is unable to consent in writing, oral consent may | 0021| be given in the presence of a third party as witness; | 0022| (3) has a legally appointed surrogate decision maker | 0023| authorized to approve review of records, the office shall obtain the | 0024| permission of the surrogate decision maker for review of the records, | 0025| unless any of the following apply: | 0001| (a) the existence of the surrogate decision | 0002| maker is unknown to the office or the facility; | 0003| (b) the surrogate decision maker cannot be | 0004| reached within five working days; or | 0005| (c) access to the records is necessary to | 0006| investigate a complaint and the surrogate decision maker refuses to | 0007| give the permission and a representative of the office has reasonable | 0008| cause to believe that the surrogate decision maker is not following | 0009| the wishes of the resident; and | 0010| (4) is unable to express written or oral consent and | 0011| there is no surrogate decision maker or the notification of the | 0012| surrogate decision maker is not applicable for reasons set forth in | 0013| Paragraph (3) of this subsection or the patient, resident or client is | 0014| deceased, inspection of records may be made by employees of the | 0015| office, ombudsman coordinators and by ombudsmen approved by the | 0016| ombudsman coordinator or the state ombudsman. | 0017| B. Copies of records may be reproduced by the office. If | 0018| investigation of records is sought pursuant to this section, the | 0019| ombudsman shall upon request produce a statement signed by the | 0020| ombudsman coordinator or state ombudsman authorizing the ombudsman to | 0021| review the records. Facilities providing copies of records pursuant | 0022| to this section may charge the office for the actual copying cost for | 0023| each page copied. | 0024| C. Upon request by the office, a long-term care facility | 0025| shall provide to the office the name, address and telephone number of | 0001| the guardian, conservator, attorney-in-fact, legal representative or | 0002| next-of-kin of any patient, resident or client and a copy of any | 0003| document granting legal decision-making power over a resident. | 0004| D. The long-term care facility and personnel who disclose | 0005| records pursuant to this section shall not be liable for the | 0006| disclosure. | 0007| E. The office shall establish procedures to protect the | 0008| confidentiality of records obtained pursuant to this section." | 0009| Section 8. Section 28-17-14 NMSA 1978 (being Laws 1989, Chapter | 0010| 208, Section 14) is amended to read: | 0011| "28-17-14. CONFIDENTIALITY OF INFORMATION.-- | 0012| A. The files and records of the office may be disclosed | 0013| only for purposes of fulfilling the duties of the office of the | 0014| ombudsman pursuant to Subsection C of Section 28-17-4 NMSA 1978 at the | 0015| discretion of the state ombudsman or person designated by him. The | 0016| state ombudsman shall not disclose the identity of any complainant or | 0017| resident about whom the office maintains files or records unless: | 0018| (1) the complainant or resident or his legal | 0019| representative consents in writing to the disclosure; | 0020| (2) the complainant or resident gives oral consent | 0021| that is documented immediately in writing by a representative of the | 0022| office; | 0023| (3) disclosure is necessary for the provision of | 0024| ombudsman services to the patient, resident or client and the patient, | 0025| resident or client is unable to express written or oral consent; or | 0001| (4) disclosure is ordered by the court. | 0002| B. The director shall have access to the records and files | 0003| of the office to verify the effectiveness and quality of the ombudsman | 0004| program where the identity of any complainant, witness, patient, | 0005| resident or client is not disclosed." | 0006| Section 9. Section 28-17-15 NMSA 1978 (being Laws 1989, Chapter | 0007| 208, Section 15) is amended to read: | 0008| "28-17-15. CONFLICT OF INTEREST.--The agency shall ensure that: | 0009| A. no individual or a member of the immediate family of an | 0010| individual involved in the designation of the ombudsman or the | 0011| designation of a regional or local ombudsman is subject to a conflict | 0012| of interest; | 0013| B. no officer or employee of the office, ombudsman | 0014| coordinator or representative, or a member of their immediate family, | 0015| is subject to a conflict of interest; and | 0016| C. any ombudsman: | 0017| (1) does not have a direct involvement in the | 0018| licensing or certification of a long-term care facility or of a | 0019| provider of a long-term care service; | 0020| (2) does not have an ownership or investment | 0021| interest, represented by equity, debt or other financial relationship, | 0022| in a long-term care facility or a long-term care service; | 0023| (3) is not employed by, or participating in the | 0024| management of, a long-term care facility; and | 0025| (4) does not receive, or have the right to receive, | 0001| directly or indirectly, remuneration in cash or in kind under a | 0002| compensation arrangement with an owner or operator of a long-term care | 0003| facility." | 0004| Section 10. Section 28-17-18 NMSA 1978 (being Laws 1989, Chapter | 0005| 208, Section 18) is amended to read: | 0006| "28-17-18. AVAILABILITY OF LEGAL COUNSEL.--The agency shall | 0007| ensure that: | 0008| A. adequate legal counsel is available and is able, without | 0009| conflict of interest, to: | 0010| (1) provide advice and consultation needed to protect | 0011| the health, safety, welfare and rights to residents; and | 0012| (2) assist the ombudsman and representatives of the | 0013| office in the performance of the official duties of the ombudsman and | 0014| representatives; | 0015| B. representation is provided to any representative of the | 0016| office against whom suit or other legal action is brought or | 0017| threatened to be brought in connection with the performance of the | 0018| official duties of the ombudsman or such a representative; and | 0019| C. the office pursues administrative, legal and other | 0020| appropriate remedies on behalf of residents." | 0021| Section 11. Section 28-17-19 NMSA 1978 (being Laws 1989, Chap- | 0022| | 0023| ter 208, Section 19) is amended to read: | 0024| "28-17-19. INTERFERENCE WITH THE OFFICE AND RETALIATION | 0025| PROHIBITED--PENALTY--CIVIL.-- | 0001| A. No person shall willfully interfere with the lawful ac- | 0002| | 0003| tions of the office, including the request for immediate entry into a | 0004| long-term care facility. | 0005| B. No person shall institute discriminatory, disciplinary | 0006| or retaliatory action against any resident, employee or other person | 0007| for filing a complaint, providing information to or otherwise | 0008| cooperating with any representative of the office. | 0009| C. Any person who violates Subsection A of this section | 0010| shall be subject to a civil penalty of up to five thousand dollars | 0011| ($5,000) per occurrence. Any person who violates Subsection B of this | 0012| section shall be subject to a civil penalty of up to ten thousand | 0013| dollars ($10,000) per occurrence. The agency may assess and collect | 0014| the penalty after notice and an opportunity for hearing, before a | 0015| hearing officer designated by the agency to hear the matter, upon a | 0016| determination that a person willfully interfered with the office or | 0017| discriminated, disciplined or retaliated against an individual who | 0018| communicated or disclosed information to the office in good faith | 0019| pursuant to Subsections A and B of this section. The hearing officer | 0020| has the power to administer oaths on request of any party and issue | 0021| subpoenas and subpoenas duces tecum. However, if the violation is | 0022| against a person covered by the Personnel Act, the office shall refer | 0023| the matter to the agency employing the person for disciplinary action. | 0024| D. Any party may appeal to the court of appeals on the | 0025| record within thirty days after the final decision of the agency." | 0001| Section 12. EFFECTIVE DATE.--The effective date of the | 0002| provisions of this act is July 1, 1997. |