New
Mexico Register / Volume XXXVI, Issue 18 / September 23, 2025
TITLE 9 HUMAN RIGHTS
CHAPTER 2 AGE
PART 23 PATIENT CARE MONITORING IN
LONG-TERM CARE FACILITIES
9.2.23.1 ISSUING AGENCY: Aging
and Long-Term Services Department.
[9.2.23.1 NMAC - Rp,
9.2.23.1 NMAC, 09/23/2025]
9.2.23.2 SCOPE: This
rule applies to the general public.
[9.2.23.2 NMAC - Rp,
9.2.23.2 NMAC, 09/23/2025]
9.2.23.3 STATUTORY AUTHORITY: This
rule is adopted pursuant to the terms of Subsection B of Section 28-4-6, Section
28-17-5, and Section 28-17-19 NMSA 1978; Subsection E of Section 6 of Chapter
23 Laws 2004; and Section 10 of Chapter
53 Laws 2004.
[9.2.23.3 NMAC - Rp,
9.2.23.3 NMAC, 09/23/2025]
9.2.23.4 DURATION:
Permanent.
[9.2.23.4 NMAC - Rp,
9.2.23.4 NMAC, 09/23/2025]
9.2.23.5 EFFECTIVE DATE: September
23, 2025, unless a later date is cited in the history note at the end of a
section.
[9.2.23.5 NMAC - Rp,
9.2.23.5 NMAC, 09/23/2025]
9.2.23.6 OBJECTIVE: This
rule implements the provisions of the Patient Care Monitoring Act, Chapter 53 Laws
2004.
[9.2.23.6 NMAC - Rp,
9.2.23.6 NMAC, 09/23/2025]
9.2.23.7 DEFINITIONS: 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
retarded, and may also include:
(1) a skilled nursing facility;
(2) an intermediate care nursing facility;
(3) a nursing facility;
(4) an adult residential shelter care
home;
(5) a boarding home;
(6) any adult care home or adult
residential care facility; and
(7) any swing bed in an acute care
facility or extended care facility.
C. “Monitoring device” means a surveillance instrument
that broadcasts or records activity, but does not
include a still camera.
D. “Patient” means a person who is a resident of a
facility.
E. “Program”
means the New Mexico long-term care ombudsman program.
F. “Roommate” means a patient who shares a room in a facility with a patient who has
chosen, or whose surrogate has chosen, to install and use a monitoring device.
G. “Surrogate” means a legal guardian or a legally
appointed substitute decision-maker who is authorized to act on behalf of a
patient.
[9.2.23.7 NMAC - Rp,
9.2.23.7 NMAC, 09/23/2025]
9.2.23.8 AUTHORIZATION AND USE OF A
MONITORING DEVICE:
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 shall include a record of the date and time;
(3) the monitoring device and all
installation and maintenance costs are paid for by the patient or surrogate;
(4) written consent is given by each
roommate or each roommate’s surrogate on a form prescribed by the department;
(5) the monitoring is conducted in
accordance with any limitation placed on it as a condition of consent by a
roommate or the roommate’s surrogate; and
(6) if a roommate or the roommate’s
surrogate also wishes to install and use a monitoring device, the patient or
surrogate consents to the installation and use on terms that are no more
restrictive than any that have been placed on the patient’s or surrogate’s
installation and use.
B. A patient or surrogate may establish
and a facility shall accommodate limits on the use, including the time of
operation, direction, focus or volume, of a monitoring device.
[9.2.23.8 NMAC - Rp,
9.2.23.8 NMAC, 09/23/2025]
9.2.23.9 INSTALLATION AND USE OF A
MONITORING DEVICE:
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
authorization, consent and notice, a patient or surrogate may install, operate and maintain a monitoring
device in the patient’s room at the patient’s or surrogate’s expense. The patient or surrogate is responsible for
all costs associated with installing, operating and maintaining the monitoring
device, except the cost of electricity.
C. A patient or surrogate is responsible for selecting the
type of monitoring device that will be used in the patient’s room. If the patient or surrogate chooses to
install a monitoring device that uses Internet technology, the monitoring
device must have at least 128-bit encryption and enable a secure socket layer
(“SSL”).
[9.2.23.9 NMAC - Rp,
9.2.23.9 NMAC, 09/23/2025]
9.2.23.10 ACCOMMODATION BY FACILITY: 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 monitoring device;
(2) providing access to power sources, if
feasible;
(3) rearranging a room, if feasible;
(4) accommodating the limits a patient or
roommate, or a surrogate of either, may place on the use of a monitoring
device, if feasible;
(5) referring a patient or surrogate to
potential roommates or surrogates of roommates who have indicated on a current
patient authorization form that they would consent to monitoring if a current
roommate or surrogate of a roommate withholds consent; and
(6) allowing patients, roommates and
potential roommates to change rooms, when feasible, in those cases where
consent is an issue.
B. Undue
burden includes, but is not limited to, making structural changes to a room by
anyone other than a licensed contractor, or a non-licensed person approved by
the facility.
C. If a patient or surrogate chooses to install a monitoring
device that uses Internet technology for visual monitoring, a facility shall
allow the patient or surrogate to install any necessary Internet access
line(s), if feasible. This may require
access to the facility’s telecommunications or equipment room, and the facility
shall provide such access. In addition:
(1) a patient or surrogate is responsible
for contracting with an Internet provider and for any expense for activation,
installation and on-going service; and
(2) the facility is not required to allow
Internet access through facility or corporate networks that also maintain
confidential patient, medical, financial or personnel records.
D. A facility has the burden of proving that a requested accommodation is not feasible or constitutes an
undue burden.
E. A
facility may impose a refundable damage deposit of up to $150 to cover the cost
of repairing any damages to the facility caused by the installation or removal
of a monitoring device. Within 30 days
after the removal of a monitoring device, the facility shall deliver to the
patient or surrogate a written statement itemizing any deductions from the
deposit together with the balance of the deposit. The facility has the burden of proving that
any deductions from the deposit are reasonable.
[9.2.23.10 NMAC - Rp,
9.2.23.10 NMAC, 09/23/2025]
9.2.23.11 CONSENT OF PATIENT:
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 directive, or similar instrument.
(2) If
a patient does not have capacity to consent, only the patient’s surrogate may
give consent. If there is a dispute
among surrogates within the same priority class under the Uniform Health-Care
Decisions Act, none of them can give consent.
(3) A patient is presumed to have capacity
to consent unless the patient has been determined to be incapacitated by a
court of competent jurisdiction or by two qualified health-care professionals,
one of whom shall be the primary physician, in accordance with the terms of the
Uniform Health-Care Decisions Act.
B. Consent
to the authorization for the installation and use of a monitoring device shall
include a release of liability for the facility for a violation of the
patient’s right to privacy insofar as the use of the monitoring device is
concerned.
C. A
patient or surrogate may reverse a choice to have or not have a monitoring
device installed and used at any time, after notice to the facility on a form
prescribed by the department.
[9.2.23.11 NMAC - Rp,
9.2.23.11 NMAC, 09/23/2025]
9.2.23.12 CONSENT OF ROOMMATES:
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 power of
attorney, advance health-care directive, or similar instrument.
(2) If a roommate does not have capacity
to consent, only the roommate’s surrogate may give consent. If there is a dispute among surrogates within
the same priority class under the Uniform Health-Care Decisions Act, none of
them can give consent.
(3) A roommate is presumed to have
capacity to consent unless the roommate has been determined to be incapacitated
by a court of competent jurisdiction or by two qualified health-care
professionals, one of whom shall be the primary physician, in accordance with
the terms of the Uniform Health-Care Decisions Act.
B. Consent
to the authorization for the installation and use of a monitoring device shall
include a release of liability for the facility for a violation of the
roommate’s right to privacy insofar as the use of the monitoring device is
concerned.
C. A roommate or the roommate’s surrogate may condition or
limit consent on the use, including the time of operation, direction, focus or
volume, of a monitoring device.
D. A
roommate or the roommate’s surrogate may reverse a choice to give, not give, or
limit consent at any time, after notice to the facility on a form prescribed by
the department.
E. If a monitoring device is being used in the room of a
patient and a new roommate, who has not yet consented to the use of the
monitoring device, moves into the room, monitoring shall cease until the new
roommate, or the new roommate’s surrogate, has consented in accordance with
this section.
[9.2.23.12 NMAC - Rp,
9.2.23.12 NMAC, 09/23/2025]
9.2.23.13 FORMS:
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 at least three years from the date of the patient’s discharge
from the facility. The forms shall be accessible to the program at all times.
[9.2.23.13 NMAC - Rp,
9.2.23.13 NMAC, 09/23/2025]
9.2.23.14 AUTHORIZATION FORM: 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 and
specifics as to its type, function and use;
C. consent
of any roommate, or that roommate’s surrogate;
D. notice
of release from liability for privacy violation through the
use of the monitoring device; and
E. waiver
of the patient’s right to privacy in conjunction with the use of the monitoring
device.
[9.2.23.14 NMAC - Rp,
9.2.23.14 NMAC, 09/23/2025]
9.2.23.15 UNAUTHORIZED USE: 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.
[9.2.23.15 NMAC - Rp,
9.2.23.15 NMAC, 09/23/2025]
9.2.23.16 IMMUNITY:
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.
[9.2.23.16 NMAC - Rp,
9.2.23.16 NMAC, 09/23/2025]
9.2.23.17 NOTICE TO CURRENT PATIENTS:
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 have a
monitoring device installed in the patient’s room. Copies of the completed form shall be kept by
the facility and shall be made accessible to
the program.
[9.2.23.17 NMAC - Rp,
9.2.23.17 NMAC, 09/23/2025]
9.2.23.18 NOTICE OF MONITORING DEVICE: 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 room is monitored electronically.”
[9.2.23.18 NMAC - Rp,
9.2.23.18 NMAC, 09/23/2025]
9.2.23.19 PROHIBITED ACTS: 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 provisions of Section 28-17-19 NMSA 1978 and Rule 9.2.21 NMAC.
A. The
civil penalty for denying a person admission to a facility or for discharging a
patient from a facility in violation of this section shall be $10,000 per
occurrence.
B. The
minimum civil penalty for failing to accommodate the installation of a
monitoring device, in violation of Section 9.2.23.10 of this rule, shall be
$1,000.
C. The
minimum civil penalty for any person other than a patient or surrogate
interfering with the use of a monitoring device or destroying a recording made
by a monitoring device shall be $1,000.
D. The
minimum civil penalty for failing to refund a damage deposit in accordance with
the terms of Section 9.2.23.10 of this rule shall be $500.
E. The
civil penalties for other forms of discrimination or retaliation that violate
this section shall be determined in a manner consistent with Rule 9.2.21 NMAC.
F Except
for violations of Subsections B, C and D of this section, it is irrelevant
whether the installation or use of a monitoring device was authorized in
accordance with the terms of the Patient Care Monitoring Act and this rule.
[9.2.23.19 NMAC - Rp,
9.2.23.19 NMAC, 09/23/2025]
9.2.23.20 CRIMINAL ACTS: 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 degree felony and shall be
sentenced pursuant to Section 31-18-15 NMSA 1978.
[9.2.23.20 NMAC - Rp,
9.2.23.20 NMAC, 09/23/2025]
History of 9.2.23
NMAC: [RESERVED]
History of
Repealed Material: 9.2.23 NMAC, Patient
Care Monitoring In Long - Term Care Facilities filed 6/30/2004 effective 09/23/2025.
Other:
9.2.23 NMAC, Patient Care Monitoring In Long - Term Care Facilities
filed 6/30/2004 Replaced by 9.2.23 NMAC, Patient Care Monitoring In Long - Term
Care Facilities effective 09/23/2025.