SB0187

SENATE BILL 187

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

INTRODUCED BY

Mary Kay Papen

AN ACT

RELATING TO PROTECTION OF VULNERABLE PERSONS; PROVIDING POWERS AND DUTIES TO LICENSE, PERMIT AND REPORT ON BOARD AND CARE FACILITIES; AUTHORIZING THE MEDICAID FRAUD CONTROL UNIT IN THE OFFICE OF THE ATTORNEY GENERAL TO INVESTIGATE AND PROSECUTE ABUSE, NEGLECT AND MISAPPROPRIATION OF FUNDS IN BOARD AND CARE FACILITIES.

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

SECTION 1. Section 24-1-2 NMSA 1978 (being Laws 1973, Chapter 359, Section 2, as amended by Laws 2015, Chapter 61, Section 1 and by Laws 2015, Chapter 153, Section 1) is amended to read:

"24-1-2. DEFINITIONS.--As used in the Public Health Act:

A. "activities of daily living" means dressing, bathing, eating, toileting, walking and transferring from a bed or chair;

B. "assistance with self-medication" means, with respect to a resident of a board and care facility:

(1) reminding the resident to take medication;

(2) opening a container, removing medication from the container and placing the medication in the resident's hand, on a clean surface or in a pill cup or medication reminder box for the resident's self-administration; or

(3) reminding the resident when a prescription needs to be refilled;

C. "board and care facility" means a residential establishment that:

(1) receives payment from or on behalf of two or more adults who reside in such facility and who are unrelated to the owner or operator of such facility; and

(2) provides personal care services and may assist residents with one or more activities of daily living;

[A.] D. "crisis triage center" means a health facility that:

(1) is licensed by the department of health;

(2) is not physically part of an inpatient hospital or included in a hospital's license; and

(3) provides stabilization of behavioral health crises, including short-term residential stabilization;

[B.] E. "department" or "division" means the children, youth and families department as to child care centers, residential treatment centers that serve persons up to

twenty-one years of age, community mental health centers that serve only persons up to twenty-one years of age, day treatment centers that serve persons up to twenty-one years of age, shelter care homes and those outpatient facilities that are also community-based behavioral health facilities serving only persons up to twenty-one years of age and the department of health as to all other health facilities, unless otherwise designated;

[C.] F. "director" means the secretary;

[D.] G. "health facility" means a public hospital, profit or nonprofit private hospital, general or special hospital, outpatient facility, crisis triage center, maternity home or shelter, freestanding birth center, adult daycare facility, nursing home, intermediate care facility, [boarding home not under the control of an institution of higher learning] board and care facility, child care center, shelter care home, diagnostic and treatment center, rehabilitation center, infirmary, community mental health center that serves both children and adults or adults only, residential treatment center that serves persons up to twenty-one years of age, community mental health center that serves only persons up to twenty-one years of age and day treatment center that serves persons up to twenty-one years of age or a health service organization operating as a freestanding hospice or a home health agency. The designation of these entities as health facilities is only for the purposes of definition in the Public Health Act and does not imply that a freestanding hospice or a home health agency is considered a health facility for the purposes of other provisions of state or federal laws. "Health facility" also includes those facilities that, by federal regulation, must be licensed by the state to obtain or maintain full or partial, permanent or temporary federal funding. It does not include the offices and treatment rooms of licensed private practitioners;

[E.] H. "person", when used without further qualification, means an individual or any other form of entity recognized by law; [and]

I. "personal care services" means assistance with personal hygiene and body care, self-medication, travel to medical services, essential shopping, meal preparation, laundry and housework; and

[F.] J. "secretary" means the secretary of children, youth and families as to child care centers, residential treatment centers that serve persons up to twenty-one years of age; community mental health centers that serve only persons up to twenty-one years of age; day treatment centers that serve persons up to twenty-one years of age; shelter care homes; and those outpatient facilities that are also community-based behavioral health facilities serving only persons up to twenty-one years of age and the secretary of health as to all other health facilities."

SECTION 2. A new section of the Public Health Act is enacted to read:

"[NEW MATERIAL] BOARD AND CARE FACILITY--LICENSURE--DEPARTMENT DUTIES--MODEL STANDARDS.--By July 1, 2018, the department shall:

A. promulgate rules requiring a board and care facility to:

(1) be licensed by the department pursuant to criteria established by the department; and

(2) hold a valid custodial drug permit from the board of pharmacy if the board and care facility provides assistance with self-medication;

B. promulgate model standards for the operation of a board and care facility that ensure the health, safety and comfort of residents and that address:

(1) the construction or remodeling, plumbing, heating, lighting, ventilation and other housing conditions of a board and care facility to ensure residents' health, safety and comfort and provide protection from fire hazard;

(2) the sanitation of the board and care facility and its surroundings, including insect and rodent control, water supply standards, sewage disposal, food handling and general hygiene;

(3) the investigation and reporting of injuries, incidents and accidents;

(4) assistance with self-medication;

(5) criminal history record checks for board and care facility owners, operators and employees;

(6) the prevention of financial exploitation of residents, misappropriation of residents' funds and conflicts of interest on the part of a board and care facility's owners, operators or employees;

(7) the assessment and periodic monitoring to ensure that a resident:

(a) does not require nursing, personal care of other services that are not being provided; and

(b) is capable of self-administering medication with assistance; and

(8) the requirements for in-service education of board and care facilities' staff; and

C. inform counties and municipalities about the board and care facility model standards promulgated by the department pursuant to Subsection B of this section."

SECTION 3. A new section of the Public Health Act is enacted to read:

"[NEW MATERIAL] BOARD AND CARE FACILITY--LOCAL PERMITTING--INSPECTIONS--REPORTING.--

A. A county or municipality may:

(1) require a board and care facility to obtain a permit from the county or municipality to operate within the county's or municipality's jurisdiction;

(2) adopt by ordinance the board and care facility model standards promulgated by the department pursuant to Section 2 of this 2017 act and require a board and care facility to comply with such standards to receive or retain a permit for the operation of such facility;

(3) set reasonable fees for the issuance and renewal of a permit for the operation of a board and care facility and inspection of the facility; and

(4) impose fines for noncompliance with county or municipal ordinances applicable to a board and care facility.

B. Fees for a board and care facility permit shall be paid to the county or municipality issuing the permit. Fees collected by a county or municipality pursuant to Subsection A of this section shall be used to administer the county's or municipality's permitting program for board and care facilities or for other purposes directly related to providing board and care facilities or other assisted living services to elderly persons and persons with disabilities.

C. A county or municipality may inspect, survey or investigate a board and care facility as it deems necessary and may enter the premises of a board and care facility at reasonable times. A county or municipality shall have access to the books, records and other documents maintained by or on behalf of a board and care facility to the extent necessary to enforce board and care facility model standards adopted by the county or municipality.

D. Two or more counties or municipalities that have adopted board and care facility model standards by ordinance may enter into a joint powers agreement to permit and inspect board and care facilities.

E. No later than August 30 of each year following the establishment of a county or municipal permitting requirement for board and care facilities pursuant to this section, each county or municipality shall submit a report to the secretary of aging and long-term services that includes:

(1) the number of board and care facility permits approved and the number of permits denied, in the preceding fiscal year;

(2) the reason for denial of each permit;

(3) the number of board and care facilities with active permits as of the end of the preceding fiscal year;

(4) the address for each permitted board and care facility within the county's or municipality's jurisdiction;

(5) the number of residents that each permitted board and care facility is allowed to house at any one time;

(6) the number of inspections conducted at each permitted board and care facility; and

(7) a list of each board and care facility that had its permit suspended or revoked in the preceding fiscal year and a summary that explains the outcome for residents displaced by such suspension or revocation; provided that the summary shall not disclose personal identifying information of a displaced resident; and provided further that for purposes of this paragraph, "personal identifying information" means the name, current address, telephone number, social security number or other similar identifying information about a displaced resident.

F. The provisions of this section do not apply to a:

(1) hotel;

(2) continuing care retirement community;

(3) domestic violence safe house or shelter;

(4) residence owned or operated by a church or religious organization that qualifies for tax-exempt status under Section 501(c)(3) of the Internal Revenue Code of 1986;

(5) a health facility, other than a board and care facility, licensed by the department."

SECTION 4. [NEW MATERIAL] CUSTODIAL DRUG PERMITS.--

A. A board and care facility shall not provide assistance with self-medication without a valid custodial drug permit from the board of pharmacy.

B. The board of pharmacy shall require a board and care facility to have a custodial drug permit if it provides assistance with self-medication.

C. By September 1 of each year, the board of pharmacy shall provide a list with the names and addresses of every board and care facility with an active custodial drug permit as of June 30 of the preceding fiscal year to the department of the health, the aging and long-term services department and the legislative council service library.

D. For purposes of this section:

(1) "assistance with self-medication" means:

(a) reminding a resident to take medication;

(b) opening a container, removing medication from the container and placing the medication in the resident's hand, on a clean surface or in a pill cup or medication reminder box for a resident's self-administration; or

(2) "board and care facility" means a residential establishment that:

(a) receives payment from or on behalf of two or more adults who reside in such facility and who are unrelated to the owner or operator of such facility; and

(b) provides personal care services and may assist residents with one or more activities of daily living.

SECTION 5. A new section of the Adult Protective Services Act is enacted to read:

"[NEW MATERIAL] BOARD AND CARE FACILITIES--DUTIES OF THE DEPARTMENT--ANNUAL REPORTS.--

A. By July 1, 2018, the department shall provide a mechanism for counties and municipalities that adopt the board and care facility model standards to submit annual reports to the department as required by this 2017 act.

B. Beginning in 2018, by October 30 of each year, the department shall submit a written report to the legislative finance committee and the legislative health and human services committee compiled from the annual board and care facility reports the department has received from counties and municipalities."

SECTION 6. 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;

B. "agency" means the state agency on aging;

C.] A. "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;

B. "department" means the aging and long-term services department;

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

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

[F.] E. "long-term care facility" means [any] a 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] board and care facility;

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

(7) a continuing care retirement community;

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

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

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

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

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

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

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

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

[M.] L. "state ombudsman" means the state long-term care ombudsman; and

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

SECTION 7. Section 30-44-2 NMSA 1978 (being Laws 1989, Chapter 286, Section 2, as amended) is amended to read:

"30-44-2. DEFINITIONS.--As used in the Medicaid Fraud Act:

A. "benefit" means money, treatment, services, goods or anything of value authorized under the program;

B. "board and care facility" means a residential establishment that:

(1) receives payment from or on behalf of two or more adults who reside in such facility and who are unrelated to the owner or operator of such facility; and

(2) provides personal care services and may assist residents with one or more activities of daily living;

[B.] C. "claim" means [any] a communication, whether oral, written, electronic or magnetic, that identifies a treatment, good or service as reimbursable under the program;

[C.] D. "cost document" means [any] a cost report or similar document that states income or expenses and is used to determine a cost reimbursement-based rate of payment for a provider under the program;

[D.] E. "covered person" means an individual who is entitled to receive health care benefits from a managed health care plan;

[E.] F. "department" means the human services department;

[F.] G. "entity" means a person other than an individual and includes corporations; partnerships; associations; joint-stock companies; unions; trusts; pension funds; unincorporated organizations; governments and their political subdivisions [thereof]; and nonprofit organizations;

[G.] H. "great physical harm" means physical harm of a type that causes physical loss of a bodily member or organ or functional loss of a bodily member or organ for a prolonged period of time;

[H.] I. "great psychological harm" means psychological harm that causes mental or emotional incapacitation for a prolonged period of time [or]; that causes extreme behavioral change or severe physical symptoms; or that requires psychological or psychiatric care;

[I.] J. "health care official" means:

(1) an administrator, officer, trustee, fiduciary, custodian, counsel, agent or employee of a managed [care] health care plan;

(2) an officer, counsel, agent or employee of an organization that provides or proposes to or contracts to provide services to a managed health care plan; or

(3) an official, employee or agent of a state or federal agency with regulatory or administrative authority over a managed health care plan;

[J.] K. "managed health care plan" means a government-sponsored health benefit plan that requires a covered person to use, or creates incentives, including financial incentives, for a covered person to use, health care providers managed, owned, under contract with or employed by a health care insurer or provider service network. A "managed health care plan" includes the health care services offered by a health maintenance organization, preferred provider organization, health care insurer, provider service network, entity or person that contracts to provide or provides goods or services that are reimbursed by or are a required benefit of a state or federally funded health benefit program, or [any] a person or entity who contracts to provide goods or services to the program;

[K.] L. "person" includes individuals, corporations, partnerships and other associations;

M. "personal care services" means assistance with personal hygiene and body care, self-medication, travel to medical services, essential shopping, meal preparation, laundry and housework;

[L.] N. "physical harm" means an injury to the body that causes pain or incapacitation;

[M.] O. "program" means the medical assistance program authorized under Title [XIX] 19 of the federal Social Security Act, 42 U.S.C. 1396, et seq. and implemented under Section 27-2-12 NMSA 1978;

[N.] P. "provider" means [any] a person who has applied to participate or who participates in the program as a supplier of treatment, services or goods;

[O.] Q. "psychological harm" means emotional or psychological damage of such a nature as to cause fear, humiliation or distress or to impair a person's ability to enjoy the normal process of [his] life;

[P.] R. "recipient" means [any] an individual who receives or requests benefits under the program;

[Q.] S. "records" means [any] medical or business documentation, however recorded, relating to the treatment or care of [any] a recipient, to services or goods provided to [any] a recipient or to reimbursement for treatment, services or goods, including [any] documentation required to be retained by regulations of the program; and

[R.] T. "unit" means the medicaid fraud control unit or any other agency with power to investigate or prosecute fraud and abuse of the program."

SECTION 8. Section 30-44-3 NMSA 1978 (being Laws 1989, Chapter 286, Section 3, as amended) is amended to read:

"30-44-3. POWER TO INVESTIGATE AND ENFORCE CIVIL REMEDIES AND PROSECUTE CRIMINAL ACTIONS--DUTIES.--

A. The attorney general, the district attorneys, the unit and the department have the power and authority to investigate violations of the Medicaid Fraud Act and bring actions to enforce the civil remedies established in the Medicaid Fraud Act.

B. The attorney general, the district attorneys and those attorneys who are employees of the unit to whom the attorney general or a district attorney has, by appointment made through a joint powers agreement or other agreement for that purpose, delegated criminal prosecutorial responsibility shall have the power and authority to prosecute persons for the violation of criminal provisions of the Medicaid Fraud Act and for criminal offenses that are not defined in the Medicaid Fraud Act, but that involve or are directly related to the use of medicaid program funds or services provided through medicaid programs.

C. The unit shall review complaints alleging:

(1) abuse or neglect of residents of board and care facilities, regardless of whether payment to such facilities is made under medicaid; and

(2) misappropriation of funds of residents of board and care facilities, regardless of whether payment to such facilities is made under medicaid."

SECTION 9. Section 30-47-3 NMSA 1978 (being Laws 1990, Chapter 55, Section 3, as amended) is amended to read:

"30-47-3. DEFINITIONS.--As used in the Resident Abuse and Neglect Act:

A. "abuse" means any act or failure to act performed intentionally, knowingly or recklessly that causes or is likely to cause harm to a resident, including:

(1) physical contact that harms or is likely to harm a resident of a care facility;

(2) inappropriate use of a physical restraint, isolation or medication that harms or is likely to harm a resident;

(3) inappropriate use of a physical or chemical restraint, medication or isolation as punishment or in conflict with a physician's order;

(4) medically inappropriate conduct that causes or is likely to cause physical harm to a resident;

(5) medically inappropriate conduct that causes or is likely to cause great psychological harm to a resident; or

(6) an unlawful act, a threat or menacing conduct directed toward a resident that results and might reasonably be expected to result in fear or emotional or mental distress to a resident;

B. "activities of daily living" means dressing, bathing, eating, toileting, walking and transferring from a bed or chair;

C. "assistance with self-medication" means, with respect to a resident of a board and care facility:

(1) reminding the resident to take medication;

(3) reminding the resident when a prescription needs to be refilled;

D. "board and care facility" means a residential establishment that:

(1) receives payment from or on behalf of two or more adults who reside in such facility and who are unrelated to the owner or operator of such facility; and

(2) provides personal care services and may assist residents with one or more activities of daily living;

[B.] E. "care facility" means a hospital; skilled nursing facility; intermediate care facility; care facility for the [mentally retarded] intellectually disabled; psychiatric facility; rehabilitation facility; kidney disease treatment center; home health agency; ambulatory surgical or outpatient facility; home for the aged or disabled; group home; adult foster care home; private residence that provides personal care, sheltered care or nursing care for one or more persons; a resident's or care provider's home in which personal care, sheltered care or nursing care is provided; adult day care center; [boarding home] board and care facility; adult residential shelter care home; and any other health or resident care related facility or home, but does not include a care facility located at or performing services for any correctional facility;

[C.] F. "department" means the human services department or its successor, contractor, employee or designee;

[D.] G. "great psychological harm" means psychological harm that causes mental or emotional incapacitation for a prolonged period of time or that causes extreme behavioral change or severe physical symptoms that require psychological or psychiatric care;

[E.] H. "great physical harm" means physical harm of a type that causes physical loss of a bodily member or organ or functional loss of a bodily member or organ for a prolonged period of time;

[F.] I. "neglect" means, subject to the resident's right to refuse treatment and subject to the caregiver's right to exercise sound medical discretion, the grossly negligent:

(1) failure to provide any treatment, service, care, medication or item that is necessary to maintain the health or safety of a resident;

(2) failure to take any reasonable precaution that is necessary to prevent damage to the health or safety of a resident; or

(3) failure to carry out a duty to supervise properly or control the provision of any treatment, care, good, service or medication necessary to maintain the health or safety of a resident;

[G.] J. "person" means any individual, corporation, partnership, unincorporated association or other governmental or business entity;

K. "personal care services" means assistance with personal hygiene and body care, self-medication, travel to medical services, essential shopping, meal preparation, laundry and housework;

[H.] L. "physical harm" means an injury to the body that causes substantial pain or incapacitation; and

[I.] M. "resident" means any person who resides in a care facility or who receives treatment from a care facility."

SECTION 10. Section 43-1-9 NMSA 1978 (being Laws 1977, Chapter 279, Section 8, as amended) is amended to read:

"43-1-9. INDIVIDUALIZED TREATMENT OR HABILITATION

PLANS--DISCHARGE PLANNING.--

A. An individualized treatment or habilitation plan shall be prepared within fourteen days of a client's admission to residential treatment or services.

B. Each client shall, to the maximum extent possible, be involved in the preparation of [his own] an individualized treatment or habilitation plan.

C. Each individualized treatment or habilitation plan shall include:

(1) a statement of the nature of the specific problem and the specific needs of the client;

(2) a statement of the least restrictive conditions necessary to achieve the purposes of treatment or habilitation;

(3) a description of intermediate and long-range goals, with the projected timetable for their attainment;

(4) a statement and rationale for the plan of treatment or habilitation for achieving these intermediate and long-range goals;

(5) specification of staff responsibility and a description of the proposed staff involvement with the client in order to attain these goals; and

(6) criteria for release to less restrictive settings for treatment or habilitation, criteria for discharge and a projected date for discharge.

D. A treatment or habilitation plan for resident clients shall include:

(1) mental status examination;

(2) intellectual function assessment;

(3) psychological assessment, which may include the use of psychological testing;

(4) educational assessment;

(5) vocational assessment;

(6) social assessment;

(7) medication assessment; and

(8) physical assessment.

E. The individualized treatment or habilitation plan shall be available upon request to the following persons: the client; the client's attorney; [any] a mental health or developmental disabilities professional designated by the client; and the client's guardian or treatment guardian if one has been appointed. The client's progress in attaining the goals and objectives set forth in [his] the individualized treatment or habilitation plan shall be monitored and noted in [his] the client's records, and revisions in the plan may be made as circumstances require; provided that the persons authorized by this subsection to have access to the individualized plan shall be informed of major changes and shall have the opportunity to participate in such decision. Nothing in this subsection shall require disclosure of information to a client or to [his] the client's parent when the attending physician or certified psychologist believes that disclosure of that particular information would be damaging to the client and so records in the client's medical record.

F. When discharge planning for a client includes or suggests placement in or referral to a board and care facility, the residential treatment or habilitation program shall take reasonable steps to verify that such board and care facility holds:

(1) a valid license from, and is in good standing with, the department of health; and

(2) a valid permit from, and is in good standing with, the county or municipality where the board and care facility is located, if the county or municipality has adopted the board and care facility model standards promulgated by the department of health."

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