New Mexico Administrative Code
Title 8 - SOCIAL SERVICES
Chapter 11 - ADULT PROTECTIVE SERVICES
Part 5 - ADULT PROTECTIVE SERVICES LEGAL
Section 8.11.5.21 - PENALTIES

Universal Citation: 8 NM Admin Code 8.11.5.21

Current through Register Vol. 35, No. 18, September 24, 2024

The department may impose, after notice as described in Subsection A of 8.11.5.21 NMAC, civil penalties not to exceed $10,000 against a facility, provider, or individual who fails to provide documents or certain identifying information, interferes with an investigation, interferes with the provision of voluntary or involuntary protective services, breaches confidentiality, or fails to report abuse, neglect, or exploitation of an incapacitated adult.

A. Upon determination by the adult protective services division that there has been a violation of the particular statutory section of the APS Act that allows for a particular penalty, the department may deliver to the facility, provider, or individual charged with the violation a notice of civil penalty assessment. The notice shall be delivered in person or by certified mail, return receipt requested. The notice shall include:

(1) the name and address of the person or entity to whom the penalty assessment is directed;

(2) the date of the civil penalty assessment;

(3) the basis for the civil penalty assessment;

(4) the amount of the civil penalty assessment;

(5) the date the civil penalty assessment is due for payment;

(6) notice of the right to request an administrative hearing before the department to challenge the civil penalty assessment; and

(7) a statement that the request for administrative hearing must be made in writing to the department's adult protective services division director within ten days of the notification.

B. Unless a hearing is requested, the civil penalty assessment shall be paid to the department in the form of cash, cashier's check, or money order.

C. If a hearing is requested, the department secretary or his designee shall appoint a neutral hearing officer who shall schedule an administrative hearing to determine if the violation occurred and whether a penalty should be assessed. If a penalty shall be assessed, the hearing officer shall determine the amount of the penalty based on the following factors:

(1) the severity of the violation;

(2) the harm resulting from the violation;

(3) the number of times the violation has occurred and whether civil penalties have been assessed previously;

(4) whether the violation is willful or intentional;

(5) whether the facility, provider, or individual charged with the violation was following organizational policy or orders:

(6) whether there was threatened retaliation against a provider or employee for trying to comply with the requirements of the statutory sections of the adult protective services act allowing for penalties.

D. If the hearing officer determines that a facility, provider, or individual has committed the same violation more than once, a minimum of $1,000 per occurrence shall be assessed.

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