A. Upon a determination that a health facility is not in compliance with any licensing requirement of the department, the department, subject to the provisions of this section and Section 24-1-5 NMSA 1978, may:

(1) impose any intermediate sanction established by rule, including but not limited to:

(a) a directed plan of correction;

(b) facility monitors;

(c) denial of payment for new medicaid admissions to the facility;

(d) temporary management or receivership; and

(e) restricted admissions;

(2) assess a civil monetary penalty, with interest, for each day the facility is or was out of compliance. Civil monetary penalties shall not exceed a total of five thousand dollars ($5,000) per day. Penalties and interest amounts assessed under this paragraph and recovered on behalf of the state shall be remitted to the department in a recurring account in the state treasury for the sole purpose of funding the nonreimbursed cost of facility monitors, temporary management and health facility receiverships. The civil monetary penalties contained in this paragraph are cumulative and may be imposed in addition to any other fines or penalties provided by law; and

(3) with respect to health facilities other than childcare centers or facilities, proceed pursuant to the Health Facility Receivership Act [Chapter 24, Article 1E NMSA 1978].

B. The secretary shall adopt and promulgate rules specifying the criteria for imposition of any intermediate sanction and civil monetary penalty. The criteria shall provide for more severe sanctions for a violation that results in any abuse, neglect or exploitation of residents, clients or patients as defined in the rules or that places one or more residents, clients or patients of a health facility at substantial risk of serious physical or mental harm.

C. The provisions of this section for intermediate sanctions and civil monetary penalties shall apply to certified nursing facilities except when a federal agency has imposed the same remedies, sanctions or penalties for the same or similar violations.

D. Rules adopted by the department shall permit sanctions pursuant to Paragraphs (1) and (2) of Subsection A of this section for a specific violation in a certified nursing facility if:

(1) the state statute or rule is not duplicated by a federal certification rule; or

(2) the department determines intermediate sanctions are necessary if sanctions permitted pursuant to Paragraphs (1) and (2) of Subsection A of this section do not duplicate a sanction imposed under the authority of 42 U.S.C. 1395 or 1396 for a particular deficiency.

E. A health facility is liable for the reasonable costs of a directed plan of correction, facility monitors, temporary management or receivership imposed pursuant to this section and Section 24-1-5 NMSA 1978. The department may take all necessary and appropriate legal action to recover these costs from a health facility. All money recovered from a health facility pursuant to this subsection shall be paid into the general fund.

History: 1978 Comp., § 24-1-5.2, enacted by Laws 1990, ch. 105, § 2; 1996, ch. 35, § 3; 2005, ch. 53, § 2.

Cross references. — For Statewide Health Care Act, see 27-10-1 NMSA 1978.

The 2005 amendment, effective July 1, 2005, provided that penalties and interest amounts be remitted to the department to be used solely for funding the nonreimbursed cost of facility monitors, temporary management and health facility receiverships; provided that the provision for intermediate sanctions and monetary penalties shall apply to certified nursing facilities, except when a federal agency has already taken action; and provided that department rules shall permit sanctions for violations in a certified nursing facility if the state statute or the rule imposing the sanction is not duplicated by federal law or rule.

The 1996 amendment, effective May 15, 1996, in Subsection A, deleted "after January 1, 1994" following "that" in the introductory language and added Paragraph (3); in Subsection B, deleted "of health and environment" following "secretary" and substituted "and civil" for "including the amount of" and "penalty" for "penalties and the type and extent of intermediate sanctions"; in Subsection D, inserted "or receivership" in the first sentence; and made stylistic changes throughout the section.