AN ACT
RELATING TO HEALTH FACILITIES;
REQUIRING COORDINATED INVESTIGATION OF ALLEGATIONS OF ABUSE, NEGLECT AND
EXPLOITATION; AMENDING A SECTION OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. Section 24-1-5 NMSA 1978 (being Laws 1973,
Chapter 359, Section 5, as amended) is amended to read:
"24-1-5. LICENSURE OF HEALTH
FACILITIES--HEARINGS--APPEALS.--
A. A health facility shall not be operated
without a license issued by the department.
If a health facility is found to be operating without a license, in
order to protect human health or safety, the secretary may issue a
cease-and-desist order. The health
facility may request a hearing that shall be held in the manner provided in this
section. The department may also proceed
pursuant to the Health Facility Receivership Act.
B. The department is authorized to make
inspections and investigations and to prescribe rules it deems necessary or
desirable to promote the health, safety and welfare of persons using health
facilities.
C. Except as provided in Subsection F of this
section, upon receipt of an application for a license to operate a health
facility, the department shall promptly inspect the health facility to
determine if it is in compliance with all rules of the department. Applications for hospital licenses shall
include evidence that the bylaws or rules of the hospital apply equally to
osteopathic and medical physicians. The
department shall consolidate the applications and inspections for a hospital
that also operates as a hospital-based primary care clinic.
D. Upon inspection of a health facility, if the
department finds a violation of its rules, the department may deny the
application for a license, whether initial or renewal, or it may issue a
temporary license. A temporary license
shall not be issued for a period exceeding one hundred twenty days, nor shall
more than two consecutive temporary licenses be issued.
E. A one-year nontransferable license shall be
issued to any health facility complying with all rules of the department. The license shall be renewable for successive
one-year periods, upon filing of a renewal application, if the department is
satisfied that the health facility is in compliance with all rules of the
department or, if not in compliance with a rule, has been granted a waiver or
variance of that rule by the department pursuant to procedures, conditions and
guidelines adopted by rule of the department.
Licenses shall be posted in a conspicuous place on the licensed
premises, except that child-care centers that receive no state or federal funds
may apply for and receive from the department a waiver from the requirement
that a license be posted or kept on the licensed premises.
F. A health facility that has been inspected and
licensed by the department and that has received certification for
participation in federal reimbursement programs and that has been fully
accredited by the joint commission on accreditation of health care
organizations or the American osteopathic association shall be granted a
license renewal based on that accreditation.
Health facilities receiving less than full accreditation by the joint commission
on the accreditation of health care organizations or by the American
osteopathic association may be granted a license renewal based on that
accreditation. License renewals shall be
issued upon application submitted by the health facility upon forms prescribed by the
department. This subsection does not
limit in any way the department's various duties and responsibilities under
other provisions of the Public Health Act or under any other subsection of this
section, including any of the department's responsibilities for the health and safety
of the public.
G. The department may charge a reasonable fee
not to exceed three dollars ($3.00) per bed for an inpatient health facility or
one hundred dollars ($100) for any other health facility for each license
application, whether initial or renewal, of an annual license or the second
consecutive issuance of a temporary license.
Fees collected shall not be refundable.
All fees collected pursuant to licensure applications shall be deposited
with the state treasurer for credit to the general fund.
H. The department may revoke or suspend the
license of a health facility or may impose on a health facility an intermediate
sanction and a civil monetary penalty provided in Section 24-1-5.2 NMSA 1978
after notice and an opportunity for a hearing before a hearing officer
designated by the department to hear the matter and, except for child-care
centers and facilities, may proceed pursuant to the Health Facility
Receivership Act upon a determination that the health facility is not in
compliance with any rule of the department.
If immediate action is required to protect human health and safety, the
secretary may suspend a license or impose an intermediate sanction pending a
hearing, provided the hearing is held within five working days of the
suspension or imposition of the sanction, unless waived by the licensee, and,
except for child-care centers and facilities, may proceed ex parte pursuant to
the Health Facility Receivership Act.
I. The department shall schedule a hearing
pursuant to Subsection H of this section if the department receives a request
for a hearing from a licensee:
(1) within ten working days after receipt by the
licensee of notice of suspension, revocation, imposition of an intermediate
sanction or civil monetary penalty or denial of an initial or renewal
application;
(2) within four working days after receipt by the
licensee of an emergency suspension order or emergency intermediate sanction
imposition and notice of hearing if the licensee wishes to waive the early
hearing scheduled and request a hearing at a later date; or
(3) within five working days after receipt of a
cease-and-desist order.
The department shall also
provide timely notice to the licensee of the date, time and place of the
hearing, identity of the hearing officer, subject matter of the hearing and
alleged violations.
J. A hearing held pursuant to provisions of this
section shall be conducted in accordance with adjudicatory hearing rules and
procedures adopted by rule of the department.
The licensee has the right to be represented by counsel, to present all
relevant evidence by means of witnesses and books, papers, documents, records,
files and other evidence and to examine all opposing witnesses who appear on
any matter relevant to the issues. The
hearing officer has the power to administer oaths on request of any party and
issue subpoenas and subpoenas duces tecum prior to or after the commencement of
the hearing to compel discovery and the attendance of witnesses and the
production of relevant books, papers, documents, records, files and other evidence. Documents or records pertaining to abuse,
neglect or exploitation of a resident, client or patient of a health facility
or other documents, records or files in the custody of the human services
department or the office of the state long-term care ombudsman at the state
agency on aging that are relevant to the alleged violations are discoverable
and admissible as evidence in any hearing.
K. Any party may appeal the final decision of
the department pursuant to the provisions of Section 39-3-1.1 NMSA 1978.
L. A complaint about a health facility received
by the department pursuant to this section shall be promptly investigated and
appropriate action shall be taken if substantiated. The department shall develop a health
facilities protocol in conjunction with the human services department, the
protective services division of the children, youth and families department,
the office of the state long-term care ombudsman and other appropriate agencies
to ensure the health, safety and rights of individuals in health
facilities. The health facilities’ protocol shall require:
(1) cross-reference among agencies pursuant to
this subsection of an allegation of abuse, neglect or exploitation;
(2) an investigation, within the strict priority
time frames established by each protocol member's rules, of an allegation or
referral of abuse, neglect or exploitation after the department has made a good
cause determination that abuse, neglect or exploitation occurred;
(3) an agency to share its investigative
information and findings with other agencies, unless otherwise prohibited by
law; and
(4) require the receiving agency to accept the
information provided pursuant to Paragraph (3) of this subsection as potential
evidence to initiate and conduct investigations.
M. A complaint received by the department
pursuant to this section shall not be disclosed publicly in a manner as to
identify any individuals or health facilities if upon investigation the complaint
is unsubstantiated.
N. Notwithstanding any other provision of this
section, when there are reasonable grounds to believe that a child is in
imminent danger of abuse or neglect while in the care of a child-care facility,
whether or not licensed, or upon the receipt of a report pursuant to Section
32A-4-3 NMSA 1978, the department shall consult with the owner or operator of
the child-care facility. Upon a finding
of probable cause, the department shall give the owner or operator notice of
its intent to suspend operation of the child-care facility and provide an
opportunity for a hearing to be held within three working days, unless waived
by the owner or operator. Within seven
working days from the day of notice, the secretary shall make a decision, and,
if it is determined that any child is in imminent danger of abuse or neglect in
the child-care facility, the secretary may suspend operation of the child-care
facility for a period not in excess of fifteen days. Prior to the date of the hearing, the
department shall make a reasonable effort to notify the parents of children in
the child-care facility of the notice and opportunity for hearing given to the
owner or operator.
O. Nothing contained in this section or in the
Public Health Act shall authorize either the secretary or the department to
make any inspection or investigation or to prescribe any rules concerning group
homes as defined in Section 9-8-13 NMSA 1978 except as are reasonably necessary
or desirable to promote the health and safety of persons using group
homes."
HB 535
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