New
Mexico Register / Volume XXXVI, Issue 18 / September 23, 2025
TITLE 9 HUMAN RIGHTS
CHAPTER 2 AGE
PART 21 CIVIL PENALTY ASSESSMENTS BY THE
STATE LONG-TERM CARE OMBUDSMAN
9.2.21.1 ISSUING AGENCY: Aging
and Long-Term Services Department.
[9.2.21.1 NMAC - Rp,
9.2.21.1 NMAC, 09/23/2025]
9.2.21.2 SCOPE: This
rule applies to the general public.
[9.2.21.2 NMAC - Rp,
9.2.21.2 NMAC, 09/23/2025]
9.2.21.3 STATUTORY AUTHORITY: This
rule is adopted pursuant to the terms of 42 U.S.C. Section 3058g(j), Sections
28-4-6(B), 28-17-5 and 28-17-19 NMSA 1978 and Laws 2004, Ch. 23, Sec. 6(E).
[9.2.21.3 NMAC - Rp, 9.2.21.3 NMAC, 09/23/2025]
9.2.21.4 DURATION: Permanent.
[9.2.21.4 NMAC - Rp,
9.2.21.4 NMAC, 09/23/2025]
9.2.21.5 EFFECTIVE DATE: September
23, 2025, unless a later date is cited in the history note at the end of a
section.
[9.2.21.5 NMAC - Rp,
9.2.21.5 NMAC, 09/23/2025]
9.2.21.6 OBJECTIVE: This
rule establishes a schedule of civil penalties that will be imposed on persons
or entities that violate Section 28-17-19 NMSA 1978.
[9.2.21.6 NMAC - Rp,
9.2.21.6 NMAC, 09/23/2025]
9.2.21.7 DEFINITIONS: 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-term services department. It is the state department charged, among
other things, with implementing the requirements of the federal Older Americans
Act of 1965, as amended (42 U.S.C. Section 3001, et seq.).
C. “Long-term care ombudsman program” means the program administered by the state
long-term care ombudsman.
D. “State long-term care ombudsman” means the office established pursuant to the
terms of 42 U.S.C. Section 3058g and Section 28-17-4 NMSA 1978 to, among other
things, identify, investigate and resolve complaints that are made by, or on
behalf of, residents of long-term care facilities and that relate to action,
inaction or decisions that may adversely affect the health, safety, welfare or
rights of the residents.
[9.2.21.7 NMAC - Rp,
9.2.21.7 NMAC, 09/23/2025]
9.2.21.8 WILLFUL
INTERFERENCE WITH LONG-TERM CARE OMBUDSMAN PROGRAM:
A. Any
person or entity committing willful interference, as defined in 45 C.F.R.
Section 1324 and 9.2.19 NMAC, 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 facility:
$500 minimum per occurrence;
(2) imposing unreasonable time limits or
constraints on visiting a long-term care facility or its residents or
employees: $500 minimum per occurrence;
(3) failing to provide an ombudsman, upon
proper written request, immediate access to readily available medical,
personal, financial or other nonmedical records, including administrative
records, policies, procedures or documents that concern, involve or pertain to
a resident’s diet, comfort, health, safety or welfare, but not including
internal quality assurance or risk management reports: $500 minimum per occurrence;
(4) failing to provide an ombudsman, upon
proper written request, access within twenty-four hours to nonreadily
available medical, personal, financial or other nonmedical records, including
administrative records, policies, procedures or documents that concern, involve
or pertain to a resident’s diet, comfort, health, safety or welfare, but not
including internal quality assurance or risk management reports: $500 minimum per occurrence;
(5) failing to honor a legally-executed
HIPAA-compliant authorization form from a resident or a resident’s surrogate
decision maker for release of records, or failing to honor a written
authorization form signed by the state long-term care ombudsman or an ombudsman
coordinator in accordance with Subsection B of Section 28-17-13 NMSA 1978, or
requiring redundant or legally-unnecessary forms to be completed: $500 minimum per occurrence;
(6) eavesdropping on any private
conversation between an ombudsman and a resident or any other person: $500 minimum per occurrence;
(7) failing to provide a quiet private
place for an ombudsman to meet with a resident or any other person: $500 minimum per occurrence;
(8) instructing a resident, employee or
any other person not to file a complaint with the long-term care ombudsman
program, or not to provide information to, or otherwise cooperate with, the
long-term care ombudsman program: $2,500
minimum per occurrence;
(9) willfully concealing facts from, or
misrepresenting facts to, an ombudsman:
$2,500 minimum per occurrence;
(10) failing to acknowledge and act timely
upon communications with an ombudsman relating to an investigation: $500 minimum per occurrence; and
(11) any other willful action that interferes
with the lawful actions of the long-term care ombudsman program: $250 minimum per occurrence.
B. Factors
that will be considered in imposing civil penalties greater than the minimum
amounts include, but are not limited to, the following:
(1) whether the interference with the
long-term care ombudsman program caused actual harm to any resident of the
facility;
(2) the number and amounts of civil
penalties that have been assessed against a facility or its owners previously;
and
(3) whether the interference with the
long-term care ombudsman program was based on a facility policy or a policy of
its owners (as opposed, for example, to an isolated incident caused by a
lower-level employee).
[9.2.21.8 NMAC - Rp,
9.2.21.8 NMAC, 09/23/2025]
9.2.21.9 RETALIATION:
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 ombudsman program shall be subjected to
civil penalties up to a maximum of $10,000 per occurrence as required pursuant
to 45 C.F.R. Sections 1324.13 and 1324.15 as follows:
(1) discharging a resident: $10,000 per occurrence;
(2) withholding treatment to, or
medication from, a resident: $2,500
minimum per occurrence;
(3) isolating a resident or changing a
resident’s room: $1,000 minimum per
occurrence;
(4) restricting a resident’s ability to
communicate with others: $1,000 minimum
per occurrence;
(5) ignoring a resident’s request for
assistance or delaying response to a request:
$1,000 minimum per occurrence;
(6) taking a resident’s property, even if
the property has no value: $1,000
minimum per occurrence;
(7) terminating an employee of a long-term
care facility: $10,000 per occurrence;
(8) suspending, demoting or taking any
other action with monetary consequences against an employee of a long-term care
facility: $2,500 minimum per occurrence;
(9) barring a person from a facility: $1,000 minimum per occurrence; and
(10) instituting any other discriminatory,
disciplinary or retaliatory action against a resident, a resident’s family
member or other representative, an employee, or any other person: $500 minimum per occurrence.
B. Factors
that will be considered in imposing civil penalties greater than the minimum
amounts include, but are not limited to, the following:
(1) whether the discrimination, discipline
or retaliation caused actual harm to any resident of the facility;
(2) the number and amounts of civil
penalties that have been assessed against a facility or its owners previously;
and
(3) whether the discrimination, discipline
or retaliation was based on a facility policy or a policy of its owners (as
opposed, for example, to an isolated incident caused by a lower-level
employee).
[9.2.21.9 NMAC - Rp,
9.2.21.9 NMAC, 09/23/2025]
9.2.21.10 CIVIL PENALTY ASSESSMENT:
A. Upon
determining that there has been a violation of Section 28-17-19 NMSA 1978 and
this rule, the state long-term care ombudsman may deliver to the person or
entity charged with the violation a notice of civil penalty assessment. The notice shall be delivered in person or by
certified mail, return receipt requested.
The notice shall include:
(1) the name and address of the person or
entity to whom the civil penalty assessment is directed;
(2) the date of the civil penalty
assessment;
(3) the basis for the civil penalty
assessment;
(4) the amount of the civil penalty
assessment;
(5) the date the civil penalty assessment
is due for payment; and
(6) notice of the right to request a
hearing before the department to challenge the civil penalty assessment.
B. Unless
a hearing is requested, the civil penalty assessment shall be paid to the
department within 30 calendar days from the date of the assessment. Payment shall be in the form of cash,
cashier’s check or money order.
[9.2.21.10 NMAC - Rp,
9.2.21.10 NMAC, 09/23/2025]
9.2.21.11 RECOVERY PROHIBITED: No
person or entity that has been issued a civil penalty assessment shall recover
or attempt to recover the assessment or any portion of it, directly or
indirectly, from any resident of a long-term care facility or from any person,
insurer, governmental agency or other entity that may be responsible for paying
for the services rendered to a resident of a facility.
[9.2.21.11 NMAC - Rp,
9.2.21.11 NMAC, 09/23/2025]
History of 9.2.21
NMAC: [RESERVED]
History of
Repealed Material: 9.2.21 NMAC, Civil
Penalty Assessments By The State Long Term Care Ombudsman filed 3/8/2004
Repealed effective 09/23/2025.
Other:
9.2.21 NMAC, Civil Penalty Assessments By The State Long Term Care
Ombudsman filed 3/8/2004 Replaced by 9.2.21 NMAC, Civil Penalty Assessments By
The State Long Term Care Ombudsman effective 09/23/2025.