2021 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 47 - Resident Abuse and Neglect
Section 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; 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; 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. "department" means the human services department or its successor, contractor, employee or designee;

D. "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. "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. "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 person who resides in a care facility or who receives treatment from a care facility.

History: Laws 1990, ch. 55, § 3; 2010, ch. 93, § 1.

Cross references. — For criminal records screening for caregivers employed by care providers, see 29-17-2 to 29-17-5 NMSA 1978.

The 2010 amendment, effective May 19, 2010, in Subsection A(5), at the end of the sentence, added "or"; and in Subsection B, after "nursing care for one or more persons", added "a resident's or care provider's home in which personal care, sheltered care or nursing care is provided".

Standard of negligence. — Criminal negligence is the standard applicable to 30-47-3(F) NMSA 1978 which requires an actual or imputed foreseeability of danger directed toward the victim who might be injured as a result of the defendant's acts and a risk of harm that is substantial and unjustifiable. State v. Muraida, 2014-NMCA-060, cert. denied, 2014-NMCERT-005.

"Care facility". — Evidence was sufficient to prove that defendant, who was legal custodian of eighty-year-old man, housed the man at his mother's residence, and provided other services for him, was acting as a "care facility" for the man and was, therefore, subject to the provisions of this article. State v. Davis, 1998-NMCA-148, 126 N.M. 297, 968 P.2d 808.

The Resident Abuse and Neglect Act applies to persons in a private residence setting who take on the responsibility as caregivers to care for severely developmentally disabled and other similarly incapacitated adults, including the aged, who are in need of frequent, if not daily, personal assistance and care to stave off harm. State v. Greenwood, 2012-NMCA-017, 271 P.3d 753, cert. denied, 2012-NMCERT-001.

Resident of a care facility. — Where the victim, who was a profoundly developmentally disabled adult, resided in defendant's home; defendant was the victim's parent; defendant was not treating or caring for the victim under any contract with a care facility, care provider or other entity; the victim was totally dependent on defendant for the victim's life; and defendant accepted full responsibility for the victim's care, defendant's home was a "care facility" and the victim was a "resident". State v. Greenwood, 2012-NMCA-017, 271 P.3d 753, cert. denied, 2012-NMCERT-001.