46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO HEALTH CARE; ENACTING THE PRIVATE ENFORCEMENT OF LONG-TERM CARE PROTECTIONS ACT; PROVIDING FOR PRIVATE RIGHTS OF ACTION.

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

Section 1. SHORT TITLE.--This act may be cited as the "Private Enforcement of Long-Term Care Protections Act".

Section 2. PURPOSE.--The purpose of the Private Enforcement of Long-Term Care Protections Act is to establish the right of persons to enforce the statutes and rules applicable to long-term care facilities by way of civil action or injunctive relief.

Section 3. DEFINITIONS.--As used in the Private Enforcement of Long-Term Care Protections Act:

A. "injury" means physical harm, pain or mental anguish;

B. "long-term care facility" means a residential facility that provides care to one or more patients unrelated to the owner or operator of the facility and includes:

(1) a skilled nursing facility;

(2) an intermediate care nursing facility, including an intermediate care facility for the mentally retarded;

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

(9) an adult daycare facility; and

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

Section 4. PRIVATE RIGHT OF ACTION FOR DAMAGES.--

A. Any resident, as a class or otherwise, may bring an action against a long-term care facility to recover actual and punitive damages for injury resulting from a violation of a federal or state statute or rule, including statutes or rules that establish minimum standards or care required for the long-term care facility to obtain or retain its license to operate or to receive medicaid or medicare payments.

B. An action brought pursuant to the provisions of the Private Enforcement of Long-Term Care Protections Act, in addition to seeking damages, may also seek to enforce the violated federal or state statutes or rules through injunctive relief.

C. If a resident or his representative is the prevailing party in an action brought pursuant to the Private Enforcement of Long-Term Care Protections Act, the court shall award no less than one thousand ($1,000) minimum compensatory damages and shall award reasonable attorney fees and costs to the prevailing resident.

D. If a resident is not able to bring a cause of action personally due to death, incapacity or otherwise, his guardian, legal representative, family member or the estate's personal representative may maintain an action on his behalf.

E. The rights established in the Private Enforcement of Long-Term Care Protections Act are in addition to any other rights or remedies that may be available by statute, rule or common law, including relief pursuant to the provisions of the Unfair Practices Act.

Section 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.