N.M. Code R. § 9.2.21.8 - WILLFUL INTERFERENCE WITH LONG-TERM CARE OMBUDSMAN PROGRAM

A. Any person or entity that willfully interferes with the lawful actions of the long-term care ombudsman program shall be subjected to civil penalties up to a maximum of $5,000 per occurrence as follows:

(1) failing to allow an ombudsman immediate entry into a long-term care facility: $500 minimum per occurrence;

(2) imposing unreasonable time limits or constraints on visiting a long-term care facility or its residents or employees: $500 minimum per occurrence;

(3) failing to provide an ombudsman, upon proper written request, immediate access to readily available medical, personal, financial or other nonmedical records, including administrative records, policies, procedures or documents that concern, involve or pertain to a resident's diet, comfort, health, safety or welfare, but not including internal quality assurance or risk management reports: $500 minimum per occurrence;

(4) failing to provide an ombudsman, upon proper written request, access within twenty-four hours to nonreadily available medical, personal, financial or other nonmedical records, including administrative records, policies, procedures or documents that concern, involve or pertain to a resident's diet, comfort, health, safety or welfare, but not including internal quality assurance or risk management reports: $500 minimum per occurrence;

(5) failing to honor a legally-executed HIPAA-compliant authorization form from a resident or a resident's surrogate decision maker for release of records, or failing to honor a written authorization form signed by the state long-term care ombudsman or an ombudsman coordinator in accordance with Section 28-17-13(B) NMSA 1978, or requiring redundant or legally-unnecessary forms to be completed: $500 minimum per occurrence;

(6) eavesdropping on any private conversation between an ombudsman and a resident or any other person: $500 minimum per occurrence;

(7) failing to provide a quiet private place for an ombudsman to meet with a resident or any other person: $500 minimum per occurrence;

(8) instructing a resident, employee or any other person not to file a complaint with the long-term care ombudsman program, or not to provide information to, or otherwise cooperate with, the long-term care ombudsman program: $2,500 minimum per occurrence;

(9) willfully concealing facts from, or misrepresenting facts to, an ombudsman: $2,500 minimum per occurrence;

(10) failing to acknowledge and act timely upon communications with an ombudsman relating to an investigation: $500 minimum per occurrence; and

(11) any other willful action that interferes with the lawful actions of the long-term care ombudsman program: $250 minimum per occurrence.

B. Factors that will be considered in imposing civil penalties greater than the minimum amounts include, but are not limited to, the following:

(1) whether the interference with the long-term care ombudsman program caused actual harm to any resident of the facility;

(2) the number and amounts of civil penalties that have been assessed against a facility or its owners previously; and

(3) whether the interference with the long-term care ombudsman program was based on a facility policy or a policy of its owners (as opposed, for example, to an isolated incident caused by a lower-level employee).

Notes

N.M. Code R. § 9.2.21.8

9.2.21.8 NMAC - N, 4/1/2004