A. A health facility shall not be operated without a license issued by the department. If a health facility is found to be operating without a license, in order to protect human health or safety, the secretary may issue a cease-and-desist order. The health facility may request a hearing that shall be held in the manner provided in this section. The department may also proceed pursuant to the Health Facility Receivership Act [Chapter 24, Article 1E NMSA 1978].

B. The department is authorized to make inspections and investigations and to prescribe rules it deems necessary or desirable to promote the health, safety and welfare of persons using health facilities.

C. Except as provided in Subsection F of this section, upon receipt of an application for a license to operate a health facility, the department shall promptly inspect the health facility to determine if it is in compliance with all rules of the department. Applications for hospital licenses shall include evidence that the bylaws or rules of the hospital apply equally to osteopathic and medical physicians. The department shall consolidate the applications and inspections for a hospital that also operates as a hospital-based primary care clinic.

D. Upon inspection of a health facility, if the department finds a violation of its rules, the department may deny the application for a license, whether initial or renewal, or it may issue a temporary license. A temporary license shall not be issued for a period exceeding one hundred twenty days, nor shall more than two consecutive temporary licenses be issued.

E. A one-year nontransferable license shall be issued to any health facility complying with all rules of the department. The license shall be renewable for successive one-year periods, upon filing of a renewal application, if the department is satisfied that the health facility is in compliance with all rules of the department or, if not in compliance with a rule, has been granted a waiver or variance of that rule by the department pursuant to procedures, conditions and guidelines adopted by rule of the department. Licenses shall be posted in a conspicuous place on the licensed premises, except that child care centers that receive no state or federal funds may apply for and receive from the department a waiver from the requirement that a license be posted or kept on the licensed premises.

F. A health facility that has been inspected and licensed by the department, that has received certification for participation in federal reimbursement programs and that has been fully accredited by a national accrediting organization approved by the federal centers for medicare and medicaid services or the department shall be granted a license renewal based on that accreditation. A freestanding birth center that has been inspected and licensed by the department and is accredited by the commission for accreditation of birth centers or its successor accreditation body shall be granted a license renewal based on that accreditation. Health facilities receiving less than full accreditation by an approved accrediting body may be granted a license renewal based on that accreditation. License renewals shall be issued upon application submitted by the health facility upon forms prescribed by the department. This subsection does not limit in any way the department's various duties and responsibilities under other provisions of the Public Health Act or under any other subsection of this section, including any of the department's responsibilities for the health and safety of the public.

G. The department may charge a reasonable fee not to exceed twelve dollars ($12.00) per bed for an inpatient health facility or three hundred dollars ($300) for any other health facility for each license application, whether initial or renewal, of an annual license or the second consecutive issuance of a temporary license. Fees collected shall not be refundable. All fees collected pursuant to licensure applications shall be deposited with the state treasurer for credit in a designated department recurring account for use in health facility licensure and certification operations.

H. The department may revoke or suspend the license of a health facility or may impose on a health facility an intermediate sanction and a civil monetary penalty provided in Section 24-1-5.2 NMSA 1978 after notice and an opportunity for a hearing before a hearing officer designated by the department to hear the matter and, except for child care centers and facilities, may proceed pursuant to the Health Facility Receivership Act upon a determination that the health facility is not in compliance with any rule of the department. If immediate action is required to protect human health and safety, the secretary may suspend a license or impose an intermediate sanction pending a hearing, provided the hearing is held within five working days of the suspension or imposition of the sanction, unless waived by the licensee, and, except for child care centers and facilities, may proceed ex parte pursuant to the Health Facility Receivership Act.

I. The department shall schedule a hearing pursuant to Subsection H of this section if the department receives a request for a hearing from a licensee:

(1) within ten working days after receipt by the licensee of notice of suspension, revocation, imposition of an intermediate sanction or civil monetary penalty or denial of an initial or renewal application;

(2) within four working days after receipt by the licensee of an emergency suspension order or emergency intermediate sanction imposition and notice of hearing if the licensee wishes to waive the early hearing scheduled and request a hearing at a later date; or

(3) within five working days after receipt of a cease-and-desist order.

The department shall also provide timely notice to the licensee of the date, time and place of the hearing, identity of the hearing officer, subject matter of the hearing and alleged violations.

J. A hearing held pursuant to provisions of this section shall be conducted in accordance with adjudicatory hearing rules and procedures adopted by rule of the department. The licensee has the right to be represented by counsel, to present all relevant evidence by means of witnesses and books, papers, documents, records, files and other evidence and to examine all opposing witnesses who appear on any matter relevant to the issues. The hearing officer has the power to administer oaths on request of any party and issue subpoenas and subpoenas duces tecum prior to or after the commencement of the hearing to compel discovery and the attendance of witnesses and the production of relevant books, papers, documents, records, files and other evidence. Documents or records pertaining to abuse, neglect or exploitation of a resident, client or patient of a health facility or other documents, records or files in the custody of the human services department or the office of the state long-term care ombudsman at the aging and long-term services department that are relevant to the alleged violations are discoverable and admissible as evidence in any hearing.

K. Any party may appeal the final decision of the department pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

L. A complaint about a health facility received by the department pursuant to this section shall be promptly investigated and appropriate action shall be taken if substantiated. The department shall develop a health facilities protocol in conjunction with the human services department, the protective services division of the children, youth and families department, the office of the state long-term care ombudsman and other appropriate agencies to ensure the health, safety and rights of individuals in health facilities. The health facilities protocol shall require:

(1) cross-reference among agencies pursuant to this subsection of an allegation of abuse, neglect or exploitation;

(2) an investigation, within the strict priority time frames established by each protocol member's rules, of an allegation or referral of abuse, neglect or exploitation after the department has made a good cause determination that abuse, neglect or exploitation occurred;

(3) an agency to share its investigative information and findings with other agencies, unless otherwise prohibited by law; and

(4) require the receiving agency to accept the information provided pursuant to Paragraph (3) of this subsection as potential evidence to initiate and conduct investigations.

M. A complaint received by the department pursuant to this section shall not be disclosed publicly in a manner as to identify any individuals or health facilities if upon investigation the complaint is unsubstantiated.

N. The name and information regarding the person making a complaint pursuant to this section shall not be disclosed absent the consent of the informant or a court order.

O. Notwithstanding any other provision of this section, when there are reasonable grounds to believe that a child is in imminent danger of abuse or neglect while in the care of a child care facility, whether or not licensed, or upon the receipt of a report pursuant to Section 32A-4-3 NMSA 1978, the department shall consult with the owner or operator of the child care facility. Upon a finding of probable cause, the department shall give the owner or operator notice of its intent to suspend operation of the child care facility and provide an opportunity for a hearing to be held within three working days, unless waived by the owner or operator. Within seven working days from the day of notice, the secretary shall make a decision, and, if it is determined that any child is in imminent danger of abuse or neglect in the child care facility, the secretary may suspend operation of the child care facility for a period not in excess of fifteen days. Prior to the date of the hearing, the department shall make a reasonable effort to notify the parents of children in the child care facility of the notice and opportunity for hearing given to the owner or operator.

P. Nothing contained in this section or in the Public Health Act shall authorize either the secretary or the department to make any inspection or investigation or to prescribe any rules concerning group homes as defined in Section 9-8-13 NMSA 1978 except as are reasonably necessary or desirable to promote the health and safety of persons using group homes.

History: 1953 Comp., § 12-34-5, enacted by Laws 1973, ch. 359, § 5; 1975, ch. 183, § 3; 1979, ch. 33, § 1; 1983, ch. 185, § 1; 1987, ch. 31, § 2; 1989, ch. 138, § 1; 1990, ch. 105, § 1; 1996, ch. 35, § 2; 1997, ch. 113, § 1; 1998, ch. 55, § 32; 1999, ch. 265, § 34; 2003, ch. 120, § 1; 2005, ch. 53, § 1; 2015, ch. 153, § 2; 2017, ch. 87, § 7.

Cross references. — For inspections generally, see 24-1-16 to 24-1-19 NMSA 1978.

For confidentiality of files and records generally, see 24-1-20 NMSA 1978.

For abandonment or abuse of a child, see 30-6-1 NMSA 1978.

The 2017 amendment, effective June, 16, 2017, prohibited the disclosure of names and information regarding any person who makes a complaint about a health facility to the department of health, unless the complainant consents or there is a court order; and added a new Subsection N and redesignated the succeeding subsections accordingly.

The 2015 amendment, effective June 19, 2015, authorized renewal of a license for health facilities that are accredited by a national accrediting organization approved by the department of health or the federal centers for medicare and medicaid services and removed accreditation by the American osteopathic association, and provided that a freestanding birth center shall be granted a license renewal based on accreditation by the commission for accreditation of birth centers or its successor accreditation body; in Subsection F, after "fully accredited by", deleted "the joint commission on accreditation of health care organizations or the American osteopathic association" and added "a national accrediting organization approved by the federal centers for medicare and medicaid services or the department", after "based on that accreditation", added "A freestanding birth center that has been inspected and licensed by the department and is accredited by the commission for accreditation of birth centers or its successor accreditation body shall be granted a license renewal based on that accreditation.", and after "less than full accreditation by", deleted "the joint commission on the accreditation of health care organizations or by the American osteopathic association" and added "an approved accrediting body".

The 2005 amendment, effective July 1, 2005, amended Subsection G to increase the maximum fees that may be charged for initial and renewal license applications from $3.00 to $12.00 per bed and from $100 to $300 per facility and provided that all fees shall be credited to a "recurring account" for use in health facility licensure and certification operations.

The 2003 amendment, effective June 20, 2003, in Subsection A, substituted "A" for "No" at the beginning, inserted "not" preceding "be operated without"; in Subsection F, inserted "health" preceding "facility upon forms"; rewrote Subsection L; substituted "A complaint" for "Complaints" at the beginning of Subsection M; and substituted "when" for "where" preceding "there are reasonable grounds" in Subsection N.

The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Subsection K.

The 1998 amendment, effective September 1, 1998, in the catchline, inserted "; hearings; appeals"; in Subsection C, substituted "rules" for "regulations" in two places; in Subsection D, substituted "rules" for "regulations" and "the department" for "it"; in Subsection E, substituted "rules" for "regulations" in two places, and substituted "rule" for "regulation" in three places; rewrote Subsection K; and made minor stylistic changes throughout the section.

The 1997 amendment, effective June 20, 1997, added the third sentence to Subsection C and made minor stylistic changes throughout the section.

The 1996 amendment, effective May 15, 1996, in Subsection A, substituted "secretary" for "director" in the second sentence and added the last sentence; in Subsection G, substituted "the second consecutive issuance" for "renewal"; in Subsection H, in the first sentence, deleted "after January 1, 1991" following the second occurrence of "facility" and added the exception near the middle of the sentence, and added the exception at the end of the second sentence; in Subsection N, deleted "health" preceding "facility" four times, substituted "32A-4-3" for "32-1-15" in the first sentence, and inserted "child-care" in the third and fourth sentences; in Subsection O, deleted "of health and environment" following "secretary"; and made stylistic changes throughout the section.

The 1990 amendment, effective July 1, 1990, substituted "in this section" for "in Subsection H of this section" at the end of the third sentence in Subsection A; added the language beginning "or if not in compliance" at the end of the second sentence in Subsection E; in Subsection H, inserted "or may impose on any health facility after January 1, 1991, any intermediate sanction or civil monetary penalty provided in Section 24-1-5.2 NMSA 1978" in the first sentence, inserted "or impose any intermediate sanction" and "or imposition of the sanction" in the second sentence, transferred the former third sentence and made it the beginning of the third sentence of present Subsection J and transferred the former fourth sentence to make it the first sentence of present Subsection K; added present Subsection I; added the first and second sentences, the language beginning "prior to or after the commencement" at the end of the third sentence and the fourth sentence of present Subsection J; added the second sentence of present Subsection K; added Subsection L; designated former Subsections I to K as present Subsections M to O; and substituted "any individuals" for "other individuals" in present Subsection M.

Child care center operated by church. — The statutory requirement of obtaining a license to operate a child care center did not violate the right of a church, which operated a child care center in which corporal punishment was allowed, to exercise religion freely. Health Servs. Div. v. Temple Baptist Church, 1991-NMCA-055, 112 N.M. 262, 814 P.2d 130, cert. denied, 112 N.M. 235, 814 P.2d 103.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 40 Am. Jur. 2d Hospitals and Asylums § 5 et seq.

Validity, construction, and effect of statute requiring consultation with, or approval of, local governmental unit prior to locating group home, halfway house, or similar community residence for the mentally ill, 51 A.L.R.4th 1096.

Licensing and regulation of nursing or rest homes, 53 A.L.R.4th 689.

Propriety of state or local government health officer's warrantless search - post-Camara cases, 53 A.L.R.4th 1168.

Tort liability of private nursery school or day-care center, or employee thereof, for injury to child while attending facility, 58 A.L.R.4th 240.

Criminal liability under statutes penalizing abuse or neglect of the institutionalized infirm, 60 A.L.R.4th 1153.

Governmental liability for negligence in licensing, regulating, or supervising private day-care home in which child is injured, 68 A.L.R.4th 266.

41 C.J.S. Hospitals § 3 et seq.