0001| AN ACT | 0002| RELATING TO HEALTH FACILITIES; PROVIDING FOR HEALTH FACILITY | 0003| RECEIVERSHIPS. | 0004| | 0005| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0006| Section 1. Section 24-1-2 NMSA 1978 (being Laws 1973, Chapter | 0007| 359, Section 2, as amended) is amended to read: | 0008| "24-1-2. DEFINITIONS.--As used in the Public Health Act: | 0009| A. "department" or "division" means the children, youth and | 0010| families department as to child-care centers and facilities and the | 0011| department of health as to all other health facilities; | 0012| B. "director" means the secretary; | 0013| C. "person", when used without further qualification, means | 0014| any individual or any other form of entity recognized by law; | 0015| D. "health facility" means any public hospital, profit or | 0016| nonprofit private hospital, general or special hospital, outpatient | 0017| facility, maternity home or shelter, adult day-care facility, nursing | 0018| home, intermediate care facility, boarding home not under the control of | 0019| an institution of higher learning, child-care center, shelter care home, | 0020| diagnostic and treatment center, rehabilitation center, infirmary or a | 0021| health service organization operating as a free standing hospice or a | 0022| home health agency. The designation of these entities as health | 0023| facilities is only for the purposes of definition in the Public Health | 0024| Act and does not imply that a free-standing hospice or a home health | 0025| agency is considered a health facility for the purposes of other provi- | 0001| sions of state or federal laws. "Health facility" also includes those | 0002| facilities which, by federal regulation, must be licensed by the state | 0003| to obtain or maintain full or partial, permanent or temporary federal | 0004| funding. It does not include the offices and treatment rooms of li- | 0005| censed private practitioners; and | 0006| E. "secretary" means the secretary of children, youth and | 0007| families as to child-care centers and facilities and the secretary of | 0008| health as to all other health facilities." | 0009| Section 2. Section 24-1-5 NMSA 1978 (being Laws 1973, Chapter | 0010| 359, Section 5, as amended) is amended to read: | 0011| "24-1-5. LICENSURE OF HEALTH FACILITIES.-- | 0012| A. No health facility shall be operated without a license | 0013| issued by the department. If a health facility is found to be operating | 0014| without a license, in order to protect human health or safety the | 0015| secretary may issue a | 0016| cease-and-desist order. The health facility may request a hearing, | 0017| which shall be held in the manner provided in this section. The | 0018| department may also proceed pursuant to the Health Facility Receivership | 0019| Act. | 0020| B. The department is authorized to make inspections and | 0021| investigations and to prescribe regulations it deems necessary or | 0022| desirable to promote the health, safety and welfare of persons utilizing | 0023| health facilities. | 0024| C. Except as provided in Subsection F of this section, upon | 0025| receipt of an application for a license to operate a health facility, | 0001| the department shall promptly inspect the health facility to determine | 0002| if it is in compliance with all regulations of the department. Appli- | 0003| cations for hospital licenses shall include evidence that the bylaws or | 0004| regulations of the hospital apply equally to osteopathic and medical | 0005| physicians. | 0006| D. Upon inspection of any health facility, if the department | 0007| finds any violation of its regulations, it may deny the application for | 0008| a license, whether initial or renewal, or it may issue a temporary li- | 0009| cense. A temporary license shall not be issued for a period exceeding | 0010| one hundred twenty days, nor shall more than two consecutive temporary | 0011| licenses be issued. | 0012| E. A one-year nontransferable license shall be issued to any | 0013| health facility complying with all regulations of the department. The | 0014| license shall be renewable for successive one-year periods, upon filing | 0015| of a renewal application, if the department is satisfied that the health | 0016| facility is in compliance with all regulations of the department or, if | 0017| not in compliance with any regulation, has been granted a waiver or | 0018| variance of that regulation by the department pursuant to procedures, | 0019| conditions and guidelines adopted by regulation of the department. | 0020| Licenses shall be posted in a conspicuous place on the licensed | 0021| premises, except that child-care centers that receive no state or fed- | 0022| eral funds may apply for and receive from the department a waiver from | 0023| the requirement that a license be posted or kept on the licensed | 0024| premises. | 0025| F. Any health facility that has been inspected and licensed | 0001| by the department and that has received certification for participation | 0002| in federal reimbursement programs and that has been fully accredited by | 0003| the joint commission on accreditation of health care organizations or | 0004| the American osteopathic association shall be granted a license renewal | 0005| based on that accreditation. Health facilities receiving less than full | 0006| accreditation by the joint commission on the accreditation of health | 0007| care organizations or by the American osteopathic association may be | 0008| granted a license renewal based on such accreditation. License renewals | 0009| shall be issued upon application submitted by the facility upon forms | 0010| prescribed by the department. This subsection does not limit in any way | 0011| the department's various duties and responsibilities under other | 0012| provisions of the Public Health Act or under any other subsection of | 0013| this section, including any of the department's responsibilities for the | 0014| health and safety of the public. | 0015| G. The department may charge a reasonable fee not to exceed | 0016| three dollars ($3.00) per bed for an in-patient health facility or one | 0017| hundred dollars ($100) for any other health facility for each license | 0018| application, whether initial or renewal, of an annual license or the | 0019| second consecutive issuance of a temporary license. Fees collected | 0020| shall not be refundable. All fees collected pursuant to licensure | 0021| applications shall be deposited with the state treasurer for credit to | 0022| the general fund. | 0023| H. The department may revoke or suspend the license of any | 0024| health facility or may impose on any health facility any intermediate | 0025| sanction and civil monetary penalty provided in Section 24-1-5.2 NMSA | 0001| 1978 after notice and an opportunity for a hearing before a hearing of- | 0002| ficer designated by the department to hear the matter, and except for | 0003| child-care centers and facilities, may proceed pursuant to the Health | 0004| Facility Receivership Act, upon a determination that the health facility | 0005| is not in compliance with any regulation of the department. If | 0006| immediate action is required to protect human health and safety, the di- | 0007| rector may suspend any license or impose any intermediate sanction pend- | 0008| ing a hearing, provided the hearing is held within five working days of | 0009| the suspension or imposition of the sanction, unless waived by the li- | 0010| censee, and, except for child-care centers and facilities, may proceed | 0011| ex parte pursuant to the Health Facility Receivership Act. | 0012| I. The department shall schedule a hearing pursuant to Sub- | 0013| section H of this section if the department receives a request for a | 0014| hearing from a licensee: | 0015| (1) within ten working days after receipt by the li- | 0016| censee of notice of suspension, revocation, imposition of an intermedi- | 0017| ate sanction or civil monetary penalty or denial of an initial or re- | 0018| newal application; | 0019| (2) within four working days after receipt by the li- | 0020| censee of an emergency suspension order or emergency intermediate sanc- | 0021| tion imposition and notice of hearing, if the licensee wishes to waive | 0022| the early hearing scheduled and request a hearing at a later date; or | 0023| (3) within five working days after receipt of a cease-and-desist order. | 0024| The department shall also provide timely notice to the licensee of | 0025| the date, time and place for the hearing, identity of the hearing offi- | 0001| cer, subject matter of the hearing and alleged violations. | 0002| J. Any hearing under this section shall be conducted in ac- | 0003| cordance with adjudicatory hearing rules and procedures adopted by reg- | 0004| ulation of the department. The licensee has the right to be represented | 0005| by counsel, to present all relevant evidence by means of witnesses and | 0006| books, papers, documents, records, files and other evidence and to | 0007| examine all opposing witnesses who appear on any matter relevant to the | 0008| issues. The hearing officer has the power to administer oaths on | 0009| request of any party and issue subpoenas and subpoenas duces tecum prior | 0010| to or after the commencement of the hearing to compel discovery and the | 0011| attendance of witnesses and the production of relevant books, papers, | 0012| documents, records, files and other evidence. Documents or records | 0013| pertaining to abuse, neglect or exploitation of a resident, client or | 0014| patient of a health facility or other documents, records or files in the | 0015| custody of the human services department or the office of the state | 0016| long-term care ombudsman at the state agency on aging that are relevant | 0017| to the alleged violations are discoverable and admissible as evidence in | 0018| any hearing. | 0019| K. Any party may appeal to the court of appeals on the | 0020| record within thirty days after the final decision of the department. | 0021| The court shall set aside the final decision only if it is found to be | 0022| arbitrary, capricious or an abuse of discretion; not supported by sub- | 0023| stantial evidence in the record; outside the authority of the depart- | 0024| ment; or otherwise not in accordance with law. | 0025| L. Every complaint about a health facility received by the | 0001| department pursuant to this section shall be promptly investigated to | 0002| substantiate the allegation and to take appropriate action if substan- | 0003| tiated. The department shall coordinate with the human services de- | 0004| partment, the office of the state long-term care ombudsman at the state | 0005| agency on aging and any other appropriate agency to develop a joint | 0006| protocol establishing responsibilities and procedures to assure prompt | 0007| investigation of complaints, including prompt and appropriate referrals | 0008| and necessary action regarding allegations of abuse, neglect or exploi- | 0009| tation of residents, clients or patients in a health facility. | 0010| M. Complaints received by the department pursuant to this | 0011| section shall not be disclosed publicly in such manner as to identify | 0012| any individuals or health facilities if upon investigation the complaint | 0013| is unsubstantiated. | 0014| N. Notwithstanding any other provision of this section, | 0015| where there are reasonable grounds to believe that any child is in im- | 0016| minent danger of abuse or neglect while in the care of a child-care | 0017| facility, whether or not licensed, or upon the receipt of a report pur- | 0018| suant to Section 32A-4-3 NMSA 1978, the department shall consult with | 0019| the owner or operator of the child-care facility. Upon a finding of | 0020| probable cause, the department shall give the owner or operator notice | 0021| of its intent to suspend operation of the facility and provide an | 0022| opportunity for a hearing to be held within three working days, unless | 0023| waived by the owner or operator. Within seven working days from the day | 0024| of notice, the director shall make a decision, and, if it is determined | 0025| that any child is in imminent danger of abuse or neglect in the child-care facility, the director may suspend operation of the facility for a | 0001| period not in excess of fifteen days. Prior to the date of the hearing, | 0002| the department shall make a reasonable effort to notify the parents of | 0003| children in the child-care facility of the notice and opportunity for | 0004| hearing given to the owner or operator. | 0005| O. Nothing contained in this section or in the Public Health | 0006| Act shall authorize either the secretary or the department to make any | 0007| inspection or investigation or to prescribe any regulations concerning | 0008| group homes as defined in Section 9-8-13 NMSA 1978 except as are | 0009| reasonably necessary or desirable to promote the health and safety of | 0010| persons utilizing group homes." | 0011| Section 3. Section 24-1-5.2 NMSA 1978 (being Laws 1990, Chapter | 0012| 105, Section 2) is amended to read: | 0013| "24-1-5.2. HEALTH FACILITIES--INTERMEDIATE SANCTIONS--CIVIL PEN- | 0014| ALTY.-- | 0015| A. Upon a determination that a health facility is not in | 0016| compliance with any licensing requirement of the department, the | 0017| department, subject to the provisions of this section and Section 24-1-5 | 0018| NMSA 1978, may: | 0019| (1) impose any intermediate sanction established by | 0020| regulation, including but not limited to: | 0021| (a) a directed plan of correction; | 0022| (b) facility monitors; | 0023| (c) denial of payment for new medicaid admissions | 0024| to the facility; | 0025| (d) temporary management; and | 0001| (e) restricted admissions; | 0002| (2) assess a civil monetary penalty, with interest, | 0003| for each day the facility is or was out of compliance. Civil monetary | 0004| penalties shall not exceed a total of five thousand dollars ($5,000) per | 0005| day. Penalties and interest amounts assessed under this paragraph and | 0006| recovered on behalf of the state shall be remitted to the state | 0007| treasurer for deposit in the general fund, except as otherwise provided | 0008| by federal law for medicaid-certified nursing facilities. The civil | 0009| monetary penalties contained in this paragraph are cumulative and may be | 0010| imposed in addition to any other fines or penalties provided by law; and | 0011| (3) with respect to health facilities other than | 0012| child-care centers or facilities, proceed pursuant to the Health | 0013| Facility Receivership Act. | 0014| B. The secretary shall adopt and promulgate regulations | 0015| specifying the criteria for imposition of any intermediate sanction and | 0016| civil monetary penalty. The criteria shall provide for more severe | 0017| sanctions for a violation that results in any abuse, neglect or | 0018| exploitation of residents, clients or patients as defined in the | 0019| regulations or that places one or more residents, clients or patients of | 0020| a health facility at substantial risk of serious physical or mental | 0021| harm. | 0022| C. The provisions of this section for intermediate sanctions | 0023| and civil monetary penalties shall not apply to certified nursing facil- | 0024| ities except upon a determination by the federal health care financing | 0025| administration that these provisions comply with the provisions for | 0001| nursing facility remedies and civil monetary penalties pursuant to 42 | 0002| U.S.C. 1395 and 1396, as amended, and upon a determination by the | 0003| department that no other state or federal agency is authorized to impose | 0004| the same remedies, sanctions or penalties. | 0005| D. A health facility is liable for the reasonable costs of a | 0006| directed plan of correction, facility monitors, temporary management or | 0007| receivership imposed pursuant to this section and Section 24-1-5 NMSA | 0008| 1978. The department may take all necessary and appropriate legal | 0009| action to recover these costs from a health facility. All money | 0010| recovered from a health facility pursuant to this subsection shall be | 0011| paid into the general fund." | 0012| Section 4. A new Section 24-1E-1 NMSA 1978 is enacted to read: | 0013| "24-1E-1. SHORT TITLE.--Sections 24-1E-1 through 24-1E-6 may be | 0014| cited as the "Health Facility Receivership Act"." | 0015| Section 5. A new Section 24-1E-2 1978 is enacted to read: | 0016| "24-1E-2. DEFINITIONS.--As used in the Health Facility | 0017| Receivership Act: | 0018| A. "department" means the department of health; | 0019| B. "health facility" means any health facility as defined in | 0020| Subsection D of Section 24-1-2 NMSA 1978 other than a child-care center | 0021| or facility, whether or not licensed by the department; | 0022| C. "person" includes a natural person and any other form of | 0023| entity recognized by law; | 0024| D. "receiver" means the secretary, upon appointment pursuant | 0025| to the Health Facility Receivership Act; and | 0001| E. "secretary" means the secretary of health." | 0002| Section 6. A new Section 24-1E-3 NMSA 1978 is enacted to read: | 0003| "24-1E-3. HEALTH FACILITY RECEIVERSHIPS AUTHORIZED--VENUE.-- | 0004| A. The secretary may file a verified petition in the | 0005| district court seeking appointment as receiver of a health facility if | 0006| the facility: | 0007| (1) is being operated without a valid license from the | 0008| division; | 0009| (2) will be closed within sixty days and adequate | 0010| arrangements to relocate its residents have not been submitted to and | 0011| approved by the secretary; | 0012| (3) has been abandoned, its residents have been | 0013| abandoned or such abandonment is imminent; or | 0014| (4) presents a situation, physical condition, practice | 0015| or method of operation that the secretary finds presents an imminent | 0016| danger of death or significant mental or physical harm to its residents | 0017| or other persons. | 0018| B. The proceedings shall be governed by, and the receiver's | 0019| powers and duties shall be as specified in, the Receivership Act, | 0020| supplemented as provided in the Health Facility Receivership Act. | 0021| C. Venue shall be laid in the district court for Santa Fe | 0022| county or any other county in which the health facility or any of its | 0023| satellite facilities is located. | 0024| D. Service of process shall be made in any manner provided | 0025| by the Rules of Civil Procedure for the District Courts. If personal | 0001| service cannot practicably or promptly be made as so provided, service | 0002| may be made by delivery of the summons with the petition attached to any | 0003| person in charge of the health facility at the time service is made. | 0004| E. The health facility shall file a responsive pleading | 0005| within ten days after the date service is made or within such time as | 0006| directed by the district court." | 0007| Section 7. A new Section 24-1E-4 NMSA 1978 is enacted to read: | 0008| "24-1E-4. HEARING ON PETITION.-- | 0009| A. Except in the case of an ex parte hearing under the | 0010| Receivership Act, the district court shall hold a hearing on the | 0011| petition within ten days after the petition is filed or as soon | 0012| thereafter as practicable. The health facility shall be given notice of | 0013| the hearing at least five days before the hearing date. | 0014| B. In the case of an ex parte hearing under the Receivership | 0015| Act, the district court may enter an order appointing the secretary as | 0016| temporary receiver, with all the rights and responsibilities of a | 0017| receiver, for ten days or until a hearing can be held on the petition. | 0018| C. Following hearing, the district court shall appoint the | 0019| secretary as receiver if it finds that any of the conditions of | 0020| Subsection A of Section 24-1E-3 NMSA 1978 exists. | 0021| D. Following any regular or ex parte hearing, the district | 0022| court may appoint a qualified person, experienced in health facility | 0023| management, to act as deputy receiver. | 0024| E. The receiver's bond shall be deemed satisfied by his bond | 0025| under the Surety Bond Act. If any deputy receiver is not a public | 0001| employee covered under the Surety Bond Act, he shall obtain a fidelity | 0002| and performance bond in an amount determined by the court. The cost of | 0003| the bond shall be paid from the receivership estate." | 0004| Section 8. A new Section 24-1E-5 NMSA 1978 is enacted to read: | 0005| "24-1E-5. RECEIVER'S POWERS AND DUTIES.-- | 0006| A. In addition to the receiver's powers and duties under the | 0007| Receivership Act, the secretary as receiver and any deputy receiver | 0008| under the Health Facility Receivership Act shall, except as the district | 0009| court may otherwise order: | 0010| (1) perform all acts that are necessary to: | 0011| (a) correct or remedy each condition on which the | 0012| receiver's appointment was based; | 0013| (b) ensure adequate care for each resident or | 0014| other person in the health facility; | 0015| (c) bring the facility into compliance with all | 0016| applicable state and federal laws, rules and regulations; and | 0017| (d) manage and operate the health facility, | 0018| including closing down, expanding or initiating new operations, hiring | 0019| and firing officers and employees, contracting for necessary services, | 0020| personnel, supplies, equipment, facilities and all other appropriate | 0021| things, purchasing, selling, marshaling, and otherwise managing its | 0022| property and assets, paying the facility's obligations, borrowing money | 0023| and property and giving security for these and expending funds of the | 0024| facility; | 0025| (2) give notice of establishment of the receivership | 0001| to interested persons, and publish notice in a newspaper of general | 0002| circulation in each county in which the health care facility and any of | 0003| its satellite facilities is located; | 0004| (3) if residents are to be discharged or transferred, | 0005| discuss the options for alternative placement with any resident or the | 0006| guardian of that resident, as applicable, and arrange to transfer the | 0007| resident's records and personal property to the alternative placement | 0008| facility; and | 0009| (4) with the court's approval, void any lease, | 0010| mortgage, secured transaction, contract or transfer of money or property | 0011| made within one year prior to the filing of the petition if made without | 0012| fair consideration, including excessive interest rate, or made with | 0013| actual intent to hinder, delay or defraud either future or existing | 0014| creditors. | 0015| B. A deputy receiver shall have the same powers and duties | 0016| as the receiver, unless the court orders otherwise." | 0017| Section 9. A new Section 24-1E-6 NMSA 1978 is enacted to read: | 0018| "24-1E-6. TERMINATION OF RECEIVERSHIP.--The receivership shall | 0019| terminate when the conditions that led to its establishment, and any | 0020| other conditions that constitute grounds for establishment of a | 0021| receivership, have ceased to exist. If the health facility is insolvent | 0022| or otherwise financially distressed, the receivership shall terminate | 0023| upon filing of federal bankruptcy proceedings, unless the district court | 0024| orders otherwise." | 0025| Section 10. Section 44-8-5 NMSA 1978 (being Laws 1995, Chapter | 0001| 81, Section 5) is amended to read: | 0002| "44-8-5. APPLICATION FOR APPOINTMENT OF A RECEIVER.-- | 0003| A. An applicant may apply to the district court for the | 0004| appointment of a receiver by motion in an action already pending or by a | 0005| separate petition or complaint. | 0006| B. An application for the appointment of a receiver shall be | 0007| verified and shall contain: | 0008| (1) a description of the receivership estate, | 0009| including the estimated gross monthly income if known, for which the | 0010| applicant seeks a receiver; | 0011| (2) the location of the receivership estate; | 0012| (3) a description of the applicant's interest in the | 0013| receivership estate; | 0014| (4) a statement showing that venue in the district | 0015| court is proper; | 0016| (5) a statement of the grounds for the appointment of | 0017| a receiver; and | 0018| (6) a nomination of the proposed receiver. | 0019| C. An ex parte hearing to appoint a receiver may be held | 0020| without written or oral notice to the adverse party or his attorney only | 0021| if: | 0022| (1) it clearly appears from specific facts shown by | 0023| affidavit or by the verified application that immediate and irreparable | 0024| injury, loss or damage will result to the applicant or others before the | 0025| adverse party's attorney can be heard in opposition; and | 0001| (2) the applicant's attorney certifies to the court in | 0002| writing the efforts, if any, that have been made to give the notice and | 0003| the reasons supporting the attorney's claim that notice should not be | 0004| required. | 0005| D. Every application, proceeding and order for appointment | 0006| of a receiver granted without notice shall comply with the Rules of | 0007| Civil Procedure for the District Courts of New Mexico pertaining to | 0008| temporary restraining orders and appointment of receivers ex parte." | 0009| | 0010| | 0011| HB | 0012| 434 | 0013| Page  |