SENATE BILL 91
54th legislature - STATE OF NEW MEXICO - first session, 2019
INTRODUCED BY
Bill Tallman
AN ACT
RELATING TO AGING; AMENDING SECTIONS OF THE CONTINUING CARE ACT TO TRANSFER OVERSIGHT OF CONTINUING CARE FROM THE ATTORNEY GENERAL TO THE SUPERINTENDENT OF INSURANCE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 24-17-3 NMSA 1978 (being Laws 1985, Chapter 102, Section 3, as amended) is amended to read:
"24-17-3. DEFINITIONS.--As used in the Continuing Care Act:
A. "affiliate" means a person having a five percent or greater interest in a provider;
B. "community" means a retirement home, retirement community, home for the aged or other place that undertakes to provide continuing care;
C. "continuing care" means furnishing, pursuant to a contract that requires entrance or advance fees and service or periodic fees, independent-living and health or health-related services. Entrance or advanced fees do not include security or damage deposit fees that amount to less than three months' service or periodic fees. These services may be provided in the community, in the resident's independent living unit or in another setting, designated by the continuing care contract, to an individual not related by consanguinity or affinity to the provider furnishing the care. The services include, at a minimum, priority access to a nursing facility or hospital either on site or at a site designated by the continuing care contract;
D. "continuing care contract" means an agreement by a provider to furnish continuing care to a resident;
E. "liquid reserves" means cash or other assets that are available within sixty days to satisfy a community's expenses and that do not include real property or interests in real property;
F. "net operating expenses" means the total costs of operating a community, including taxes and insurance but not including amortization, depreciation or long-term debt service;
G. "person" means an individual, corporation, partnership, trust, association or other legal entity;
H. "priority access to a nursing facility or hospital" means that a nursing facility or hospital services the residents of independent living units or that there is a promise of such health care or health-related services being available in the future;
I. "provider" means the owner or manager of a community that provides, or offers to provide, continuing care;
J. "resident" means, unless otherwise specified, an actual or prospective purchaser of, nominee of or subscriber to a continuing care contract;
K. "superintendent" means the superintendent of insurance;
[K.] L. "type A" agreement means an extensive
entrance-fee contract that includes housing, residential services, amenities and unlimited specific health-related services with little or no substantial increase in monthly payments, except to cover normal operating costs and inflation adjustments;
[L.] M. "type B" agreement means a modified
entrance-fee contract that includes housing, residential services, amenities and a specific amount of health care with no substantial increase in monthly payments, except to cover normal operating costs and inflation adjustments. After the specified amount of health care is used, persons served pay either a discounted rate or the full per diem rates for required health care services; and
[M.] N. "unit" means the living quarters that a resident buys, leases or has assigned as part of the continuing care contract."
SECTION 2. Section 24-17-8 NMSA 1978 (being Laws 1985, Chapter 102, Section 8, as amended) is amended to read:
"24-17-8. CONSUMER'S GUIDE TO CONTINUING CARE COMMUNITIES.--The office of [the attorney general] superintendent of insurance and the aging and long-term services department may publish and distribute a consumer's guide to continuing care communities and may publish an annual directory of communities in New Mexico."
SECTION 3. Section 24-17-10 NMSA 1978 (being Laws 1985, Chapter 102, Section 10, as amended) is amended to read:
"24-17-10. RESTRAINT OF PROHIBITED ACTS--REMEDIES.--
A. Whenever the [attorney general] superintendent has reasonable belief that any person is violating or is about to violate any provision of the Continuing Care Act, or any regulation promulgated pursuant to that act, and that proceedings would be in the public interest, the [attorney general] superintendent may bring an action [in the name of the state] to restrain or prevent violations of that act or regulations promulgated pursuant to that act. The action may be brought in the district court of the county in which the person resides or has the person's principal place of business or in the district court for Santa Fe county. The [attorney general acting on behalf of the state] superintendent shall not be required to post bond when seeking a temporary or permanent injunction in such action.
B. In any action filed pursuant to this section of the Continuing Care Act, including an action with respect to unimproved real property, the [attorney general] superintendent may petition the district court for temporary or permanent injunctive relief and restitution or remedies available pursuant to Section 24-17-15 NMSA 1978.
C. Any person who is the subject of an action brought under this section shall have the right to demand a jury trial."
SECTION 4. Section 24-17-18 NMSA 1978 (being Laws 1991, Chapter 263, Section 7) is amended to read:
"24-17-18. REPORT TO [ATTORNEY GENERAL] SUPERINTENDENT-- CIVIL ACTION--CIVIL PENALTIES.--Any time after the [state agency on] aging and long-term services department issues a notice of violation, the [state agency on aging] department may send the [attorney general] superintendent a written report alleging a possible violation of the Continuing Care Act or any rule adopted pursuant to that act. Upon receipt of that report, the [attorney general] superintendent shall promptly conduct an investigation to determine whether grounds exist for formally finding a violation. If the [attorney general] superintendent makes that finding, [he] the superintendent shall file an appropriate action against the alleged violator in a court of competent jurisdiction. Upon finding violations of any provisions of the Continuing Care Act or any rule adopted pursuant to that act, the court may impose a civil penalty in the amount of five dollars ($5.00) per resident or up to five hundred dollars ($500), in the discretion of the court, for each day that the violation remains uncorrected after the compliance date stipulated in a notice of violation issued pursuant to the Continuing Care Act."
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