SB0171

SENATE BILL 171

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Gay G. Kernan

AN ACT

RELATING TO HUMAN RIGHTS; AMENDING SECTIONS OF THE LONG-TERM CARE OMBUDSMAN ACT TO ESTABLISH LIMITATIONS ON REFERRAL IN CASES OF ABUSE, NEGLECT OR EXPLOITATION OF PERSONS RESIDING IN LONG-TERM CARE FACILITIES; REMOVING THE REQUIREMENT FOR THIRD-PARTY WITNESSING WHEN RESIDENTS OF LONG-TERM CARE FACILITIES ORALLY CONSENT TO RELEASE OF MEDICAL, PERSONAL, FINANCIAL AND OTHER NONMEDICAL RECORDS FOR OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN INVESTIGATIONS.

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

SECTION 1. Section 28-17-1 NMSA 1978 (being Laws 1989, Chapter 208, Section 1) is amended to read:

"28-17-1. SHORT TITLE.--[Sections 1 through 19 of this act] Chapter 28, Article 17 NMSA 1978 may be cited as the "Long-Term Care Ombudsman Act"."

SECTION 2. Section 28-17-3 NMSA 1978 (being Laws 1989, Chapter 208, Section 3, as amended) is amended to read:

"28-17-3. DEFINITIONS.--As used in the Long-Term Care Ombudsman Act:

A. "adult protective services" means [the children, youth and families department pursuant to the Adult Protective Services Act] the agency's adult protective services division that receives and investigates reports of adult abuse, neglect or exploitation;

B. "agency" means the [state agency on] aging and long-term services department;

C. "care" means assistance with the activities of daily living, including eating, dressing, oral hygiene, bathing, mobility, toileting, grooming, taking medications, transferring from a bed or chair and walking;

D. "director" means the [director of the state agency on] secretary of aging and long-term services;

E. "licensing and certification" means the licensing and certification bureau of the [public health division of the] department of health;

F. "long-term care facility" means any residential facility that provides care to one or more persons unrelated to the owner or operator of the facility, including:

(1) a skilled nursing facility;

(2) an intermediate care nursing facility, including an intermediate care facility for the [mentally retarded] intellectually disabled;

(3) a nursing facility;

(4) an adult residential shelter care home;

(5) a boarding home;

(6) any other adult care home or adult residential care facility;

(7) a continuing care community;

(8) any swing bed in an acute care facility or extended care facility; and

(9) any adult [day care] daycare facility;

G. "office" means the office of the state long-term care ombudsman;

H. "Older Americans Act" means the federal Older Americans Act of 1965;

I. "ombudsman" means an [individual] employee or volunteer of the office who is trained and certified to act as a representative of the office [of the state long-term care ombudsman];

J. "ombudsman coordinator" means the coordinator of a regional or local ombudsman program designated by the office [of the state ombudsman];

K. "program" means the New Mexico long-term care ombudsman program;

L. "resident" means any patient, client or person residing in and receiving care in a long-term care facility;

M. "state ombudsman" means the [state long-term care ombudsman] individual who heads the office and supervises the ombudsmen; and

N. "surrogate [decision maker] decision-maker" means [a legally appointed agent, guardian or surrogate who is authorized to act on behalf of a resident] any of the following:

(1) an individual chosen by a resident to act on the resident's behalf to support the resident in decision-making; accessing medical, social or other personal information of the resident; managing financial matters; or receiving notifications;

(2) an individual authorized by state or federal law, including an agent pursuant to a power of attorney, a representative payee or other fiduciary of the resident, to act on behalf of a resident to support the resident in decision-making; accessing medical, social or other personal information of the resident; managing financial matters; or receiving notifications;

(3) a resident's legal representative; or

(4) the court-appointed guardian or conservator of a resident."

SECTION 3. Section 28-17-9 NMSA 1978 (being Laws 1989, Chapter 208, Section 9, as amended) is amended to read:

"28-17-9. REFERRALS.--

A. When [abuse, neglect or exploitation of a patient, resident or client of a long-term care facility is suspected, the office shall make a referral to adult protective services and licensing and certification, where appropriate. The office shall coordinate with adult protective services and licensing and certification pursuant to any investigation of abuse, neglect or exploitation undertaken by those agencies] the state ombudsman or an ombudsman witnesses the abuse, neglect or exploitation of a resident who is unable to provide informed consent, the state ombudsman or ombudsman shall determine the wishes of the resident with regard to referring the complaint to another state agency, as set forth in Subsection B of this section. Only if the resident provides informed consent, or if the resident's surrogate decision-maker provides informed consent, may the state ombudsman or ombudsman disclose resident information or other relevant information with respect to whether the allegations are referred to a state agency listed in Subsection B of this section. Additionally, if the resident is unable to communicate informed consent to the state ombudsman or ombudsman and has no surrogate decision-maker, the state ombudsman or ombudsman shall comply with the procedures established pursuant to federal law.

B. The following state agencies or boards shall endeavor to give priority to any complaint referred to them by the office:

(1) the facilities management division of the general services department;

[(1)] (2) licensing and certification;

[(2) the children, youth and families department;]

(3) adult protective services;

[(3)] (4) the New Mexico medical board; [of medical examiners;

(4)] (5) the board of nursing;

[(5)] (6) the board of nursing home administrators; [or

(6)] (7) the board of pharmacy;

[The office shall coordinate its efforts with those of any state agency or board to which it makes investigation referrals]

(8) the office of the attorney general; and

(9) the medical assistance division of the human services department.

C. Any state agency or board [which] that responds to a complaint against a long-term care facility or licensed individual that was referred to the agency by the office shall forward to the office copies of related inspection reports and plans of correction and notice of any citations [and] or sanctions levied against the long-term care facility or the licensed individual."

SECTION 4. Section 28-17-13 NMSA 1978 (being Laws 1989, Chapter 208, Section 13, as amended) is amended to read:

"28-17-13. ACCESS TO RECORDS OF PATIENTS, RESIDENTS OR CLIENTS.--

A. In order for the office to carry out its responsibilities, including conducting investigations, under the Long-Term Care Ombudsman Act, the office shall have full and immediate access to readily available medical, personal, financial and other nonmedical records, which include administrative records, policies, procedures or documents that concern, involve or pertain to a resident's diet, comfort, health, safety or welfare, but do not include internal quality assurance and risk management reports, of a patient, resident or client of a long-term care facility that are retained by the facility or the facility's parent corporation or owner. If the records are not readily available, they are to be provided to the office within twenty-four hours of the request. If the patient, resident or client:

(1) has the ability to consent in writing, access may only be obtained by the written consent of the patient, resident or client;

(2) is unable to consent in writing, oral consent may be given [in the presence of a third party as witness];

(3) has a legally appointed surrogate [decision maker] decision-maker authorized to approve review of records, the office shall obtain the permission of the surrogate [decision maker] decision-maker for review of the records, unless any of the following apply:

(a) the existence of the surrogate [decision maker] decision-maker is unknown to the office or the facility;

(b) the surrogate [decision maker] decision-maker cannot be reached within five working days;

(d) the surrogate [decision maker] decision-maker refuses to give the permission and a representative of the office has reasonable cause to believe that the surrogate [decision maker] decision-maker is not following the wishes of the resident; and

(4) is unable to express written or oral consent and there is no surrogate [decision maker] decision-maker or the notification of the surrogate [decision maker] decision-maker is not applicable for reasons set forth in Paragraph (3) of this subsection or the patient, resident or client is deceased, inspection of records may be made by employees of the office, ombudsman coordinators and by ombudsmen approved by the ombudsman coordinator or the state ombudsman.

B. Copies of records may be reproduced by the office. If investigation of records is sought pursuant to this section, the ombudsman shall upon request produce a statement signed by the ombudsman coordinator or state ombudsman authorizing the ombudsman to review the records. Facilities providing copies of records pursuant to this section may charge the office for the actual copying cost for each page copied.

C. Upon request by the office, a long-term care facility shall provide to the office the name, address and telephone number of the guardian, conservator, attorney-in-fact, legal representative or next-of-kin of any patient, resident or client and a copy of any document granting legal decision-making power over a resident.

D. The long-term care facility and personnel who disclose records pursuant to this section shall not be liable for the disclosure.

E. In order to carry out its responsibilities as a health oversight agency, the office shall establish procedures to protect the confidentiality of records obtained pursuant to this section and in accordance with the federal Health Insurance Portability and Accountability Act of 1996 regulations."

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