2020 New Mexico Statutes
Chapter 28 - Human Rights
Article 17 - Long-Term Care Ombudsman
Section 28-17-9 - Referrals.
A. When abuse, neglect or exploitation of a resident of a long-term care facility is witnessed or suspected, the state ombudsman or an ombudsman shall personally discuss the matter with the resident, or, if the resident is unable to communicate informed consent, the resident's surrogate decision-maker, if applicable, and:
(1) if the resident communicates informed consent to referral and disclosure of identifying information to the long-term care facility, law enforcement or one or more of the entities listed in Subsection B of this section, the state ombudsman or an ombudsman shall assist the resident in reporting the allegation, or the state ombudsman or an ombudsman shall make the report directly. The method of reporting is at the sole discretion of the resident, though the state ombudsman or an ombudsman may counsel the resident regarding the method of reporting. If the resident is capable of informed consent and chooses not to refer the matter and not to disclose identifying information, the state ombudsman or an ombudsman shall not make a referral or disclose this information;
(2) if the state ombudsman or an ombudsman determines that the resident is not able to communicate informed consent, the state ombudsman or the ombudsman shall consult with the resident's surrogate decision-maker, if any. If the surrogate decision-maker chooses to make a referral and disclose relevant identifying information with respect to the resident, the state ombudsman or an ombudsman shall assist the surrogate decision-maker in reporting the allegation or the state ombudsman or an ombudsman shall make the report directly. The method of reporting is at the sole discretion of the resident's surrogate decision-maker, though the state ombudsman or an ombudsman may counsel the surrogate decision-maker regarding the method of reporting. If the surrogate decision-maker chooses not to refer the matter and not to disclose identifying information, the state ombudsman or an ombudsman shall not make a referral or disclose this information unless the state ombudsman or the ombudsman has reasonable cause to believe that the surrogate decision-maker has taken an action, failed to act or made a decision that may adversely affect the health, safety, welfare or rights of the resident, in which case, the state ombudsman or the ombudsman shall follow the procedure established in Paragraph (3) of this subsection as if the resident did not have a surrogate decision-maker; or
(3) if the state ombudsman or an ombudsman determines that the resident is not able to communicate informed consent and does not have a surrogate decision-maker, an ombudsman, with the consent of the state ombudsman, may make a referral and disclose relevant identifying information about the resident if the state ombudsman or the ombudsman has reasonable cause to believe that it is in the best interest of the resident to make a referral and has no evidence indicating that the resident would not want a referral to be made. In the event that these conditions are met and the abuse, neglect or exploitation has been personally witnessed by the state ombudsman or an ombudsman, the state ombudsman or the ombudsman shall make the report and the disclosure directly to the long-term care facility, law enforcement or the entities set forth in Subsection B of this section.
B. The following state agencies or boards shall endeavor to give priority to any complaint referred to them by the office:
(1) the facilities management division of the general services department;
(2) licensing and certification;
(3) adult protective services;
(4) the New Mexico medical board;
(5) the board of nursing;
(6) the board of nursing home administrators;
(7) the board of pharmacy;
(8) the office of the attorney general; and
(9) the medical assistance division of the human services department.
C. Any state agency or board that responds to a complaint against a long-term care facility or licensed individual that was referred to the agency by the office shall forward to the office copies of related inspection reports and plans of correction and notice of any citations or sanctions levied against the long-term care facility or the licensed individual.
History: Laws 1989, ch. 208, § 9; 1997, ch. 257, § 5; 2017, ch. 81, § 3.
ANNOTATIONSThe 2017 amendment, effective June 16, 2017, clarified the language outlining the duties of ombudsman to report suspected or witnessed abuse, neglect or exploitation of a resident of a long-term care facility, established limitations on referral in cases of abuse, neglect or exploitation of a person residing in a long-term care facility, and added a division of the general services department and of the human services department as well as the office of the attorney general to the list of agencies tasked with acting on complaints filed by the office of the state long-term care ombudsman; in Subsection A, after "When", added "abuse, neglect or exploitation of a resident of a long-term care facility is witnessed or suspected, the state ombudsman or an ombudsman shall personally discuss the matter with the resident, or, if the resident is unable to communicate informed consent, the resident's surrogate decision-maker, if applicable, and:", and added Paragraphs A(1) through A(3); in Subsection B, added a new Paragraph B(1), redesignated former Paragraph B(1) as Paragraph B(2), deleted former Paragraph B(2), added Paragraph B(3), in Paragraph B(4), after "New Mexico", added "medical", and after "board", deleted "of medical examiners", at the end of Paragraph B(6), deleted "or", in Paragraph B(7), after "pharmacy", deleted "The office shall coordinate its efforts with those of any state agency or board to which it makes investigation referrals", and added Paragraphs B(8) and B(9); and in Subsection C, after "agency or board", deleted "which" and added "that", after "plans of correction", added "and", and after "any citations", deleted "and" and added "or".
The 1997 amendment, effective July 1, 1997, substituted "children, youth and families" for "human services" in Paragraph B(2) and deleted "state" preceding "board" in Paragraph B(5).
