44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO RESIDENTIAL CARE; MAKING CHANGES OF DEFINITIONS, PENALTIES AND PROCEDURES IN THE RESIDENT ABUSE AND NEGLECT ACT; AMENDING SECTIONS OF THE NMSA 1978.

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

Section 1. Section 30-47-3 NMSA 1978 (being Laws 1990, Chapter 55, Section 3) 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. "care facility" means a hospital; skilled nursing facility; intermediate care facility; care facility for the mentally retarded; 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; adult day care center; boarding home; 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. "criminally negligent" means any act or failure to act in willful disregard of the rights or safety of others and in a manner that endangers any person or property;

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

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

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

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

Section 2. Section 30-47-4 NMSA 1978 (being Laws 1990, Chapter 55, Section 4) is amended to read:

"30-47-4. ABUSE OF A RESIDENT--CRIMINAL PENALTIES.--

A. Whoever commits abuse of a care facility resident that results in no harm or in an injury that is not likely to result in death, physical harm or great psychological harm to the resident is guilty of a [petty] misdemeanor and [upon conviction] shall be sentenced pursuant to the provisions of [Subsection B of] Section 31-19-1 NMSA 1978.

B. Whoever commits abuse of a resident that results in physical harm or great psychological harm to the resident is guilty of a fourth degree felony and [upon conviction] shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Whoever commits abuse of a resident that results in great physical harm to the resident is guilty of a third degree felony and [upon conviction] shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

D. Whoever commits abuse of a resident that results in the death of the resident is guilty of a second degree felony and [upon conviction] shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."

Section 3. Section 30-47-5 NMSA 1978 (being Laws 1990, Chapter 55, Section 5) is amended to read:

"30-47-5. NEGLECT OF A RESIDENT--CRIMINAL PENALTIES.--

A. Whoever commits neglect of a resident that results in no harm or in an injury that is not likely to result in death, physical harm or great psychological harm to the resident is guilty of a [petty] misdemeanor and [upon conviction] shall be sentenced pursuant to the provisions of [Subsection B of] Section 31-19-1 NMSA 1978.

B. Whoever commits neglect of a resident that results in physical harm or great psychological harm to the resident is guilty of a fourth degree felony and [upon conviction] shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Whoever commits neglect of a resident that results in great physical harm to the resident is guilty of a third degree felony and [upon conviction] shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

D. Whoever commits neglect of a resident that results in the death of the resident is guilty of a second degree felony and [upon conviction] shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978."

Section 4. Section 30-47-9 NMSA 1978 (being Laws 1990, Chapter 55, Section 9) is amended to read:

"30-47-9. REPORTING REQUIREMENTS--FAILURE TO REPORT--CRIME CREATED--CRIMINAL PENALTY--DISCRIMINATION OR RETALIATION FOR FILING A REPORT PROHIBITED.--

A. [Any] A person paid in whole or part for providing to a resident any treatment, care, good, service or medication who has reasonable cause to believe that the resident has been abused, neglected or exploited shall report the abuse, neglect or exploitation in accordance with the provisions of Section 27-7-30 NMSA 1978.

B. [Any] A person required to make a report pursuant to Subsection A of this section who fails or refuses to do so, or obstructs or impedes an investigation, is guilty of a misdemeanor and [upon conviction] shall be sentenced pursuant to the provisions of [Subsection A of] Section 31-19-1 NMSA 1978.

C. In addition to those persons required to report pursuant to Subsection A of this section, any other person shall make a report if the person has reasonable cause to believe that a patient or resident of a facility has been abused, neglected or exploited.

D. [Any] A person making a report pursuant to Subsection C of this section shall not be liable in any civil or criminal action based on the report if it was made in good faith.

E. No facility shall, without just cause, discharge or in any manner discriminate or retaliate against [any] a person who in good faith makes a report required or permitted by the Resident Abuse and Neglect Act or who testifies or is about to testify in any proceeding about the abuse, neglect or exploitation of a resident in that facility. For the purposes of this section, "retaliate" includes transferring a resident, who has reported an incident pursuant to this section, to another facility, without just cause, over the objection of the resident or the resident's guardian [any resident who has reported an incident pursuant to this section]."

F. Any person or care facility engaging in any of the proscribed conduct set forth in Subsection E of this section is guilty of a misdemeanor and shall be sentenced pursuant to the provisions of Section 31-19-1 NMSA 1978."