New Mexico Nursing Home Resident Complaint (Long-Term Care Ombudsman / DHI)

NEW MEXICO NURSING HOME RESIDENT COMPLAINT

TABLE OF CONTENTS

1. Recipient Routing
2. Complainant and Resident Identification
3. Facility Identification
4. Statutory and Regulatory Framework
5. Specific Violations of Residents' Rights
6. Factual Allegations
7. Evidence Inventory
8. Internal Grievance History
9. Relief Requested
10. Cross-Reports and Parallel Filings
11. Authorization, HIPAA, and Confidentiality
12. Signature and Verification
13. New Mexico Practice Notes
14. Sources and References

1. RECIPIENT ROUTING

2. COMPLAINANT AND RESIDENT IDENTIFICATION

2.1. Complainant.

2.2. Resident.

3. FACILITY IDENTIFICATION

4. STATUTORY AND REGULATORY FRAMEWORK

This complaint is brought under, and seeks enforcement of:

• Federal Nursing Home Reform Act (OBRA 1987) — 42 U.S.C. § 1395i-3 (Medicare-certified facilities) and § 1396r (Medicaid-certified facilities); the substantive rights are codified at 42 C.F.R. § 483.10 (residents' rights); § 483.12 (freedom from abuse, neglect, exploitation, and misappropriation); § 483.15 (admission, transfer, and discharge); § 483.20 (resident assessment); § 483.21 (comprehensive person-centered care plans); § 483.24 (quality of life); § 483.25 (quality of care); § 483.30 (physician services); § 483.35 (nursing services); § 483.40 (behavioral health); § 483.45 (pharmacy and unnecessary drugs); § 483.55 (dental); § 483.60 (food and nutrition); § 483.70 (administration); § 483.80 (infection control).
• Older Americans Act / Long-Term Care Ombudsman authority — 42 U.S.C. § 3058g; 45 C.F.R. Part 1324.
• New Mexico Public Health Act and licensing authority — NMSA § 24-1-1 et seq.; § 24-1-5 (licensing of health facilities).
• New Mexico Long-Term Care Facility regulations — 8.370.16 NMAC (effective July 1, 2024; replacing 7.9.2 NMAC); 7.8.2 NMAC (assisted living, where applicable).
• State Long-Term Care Ombudsman program — administered by the New Mexico Aging & Long-Term Services Department under NMSA Chapter 28 and consistent with 45 C.F.R. Part 1324.
• Adult Protective Services Act — NMSA § 27-7-14 et seq.
• Crimes against an at-risk adult — NMSA § 30-3-19, where conduct rises to a criminal violation.

5. SPECIFIC VIOLATIONS OF RESIDENTS' RIGHTS

Mark every right at issue. Each must be supported by facts in Section 6.

• ☐ Dignity and self-determination (42 C.F.R. § 483.10(a), (e); 8.370.16 NMAC)
• ☐ Freedom from abuse, neglect, and exploitation (42 C.F.R. § 483.12)
• ☐ Freedom from unnecessary physical or chemical restraints (42 C.F.R. § 483.10(e)(1); § 483.12(a)(2))
• ☐ Person-centered care plan participation (42 C.F.R. § 483.10(c); § 483.21(b))
• ☐ Notice of rights and services (42 C.F.R. § 483.10(g))
• ☐ Access to medical records within two business days (42 C.F.R. § 483.10(g)(2))
• ☐ Privacy and confidentiality (42 C.F.R. § 483.10(h))
• ☐ Grievance system and prompt response (42 C.F.R. § 483.10(j))
• ☐ Notice and limits on transfer / involuntary discharge (42 C.F.R. § 483.15)
• ☐ Quality of care and quality of life (42 C.F.R. §§ 483.24, 483.25)
• ☐ Pressure-injury prevention; mobility; ADLs (42 C.F.R. § 483.25(b), (d))
• ☐ Hydration, nutrition, and weight maintenance (42 C.F.R. § 483.25(g); § 483.60)
• ☐ Medication management — unnecessary drugs / antipsychotics (42 C.F.R. § 483.45(d)–(e))
• ☐ Sufficient nursing staffing (42 C.F.R. § 483.35; CMS minimum-staffing rule, where applicable)
• ☐ Infection prevention and control (42 C.F.R. § 483.80)
• ☐ Visitation rights (42 C.F.R. § 483.10(f)(4))
• ☐ Personal funds management (42 C.F.R. § 483.10(f)(10))
• ☐ Discrimination based on payor source / improper Medicaid solicitation (42 U.S.C. § 1396r(c)(5))
• ☐ Other: [________________________________]

6. FACTUAL ALLEGATIONS

6.1. On [__/__/____] at approximately [____], the resident [describe what was observed or experienced].

6.2. On [__/__/____] at approximately [____], [staff name / role] [describe specific act or omission].

6.3. Beginning on or about [__/__/____], the resident has experienced [chronic condition: pressure injury, weight loss, falls, agitation, urinary tract infection, etc.], which the facility [has not / has inadequately] addressed in violation of 42 C.F.R. § 483.25.

6.4. The facility's care plan dated [__/__/____] [fails to address / contradicts] the resident's documented needs, in violation of 42 C.F.R. § 483.21(b).

6.5. [Continue numbered allegations as needed. Add tables for medication errors, fall events, weight-loss timelines, or staffing observations.]

6A. Care Event Log

6B. Weight / Skin / Function Trend (where applicable)

7. EVIDENCE INVENTORY

8. INTERNAL GRIEVANCE HISTORY

8.1. Grievance Official. Facility grievance officer per 42 C.F.R. § 483.10(j)(4): [NAME, TITLE, CONTACT].

8.2. Internal grievances filed.

8.3. Outcome of internal process. ☐ Unresolved ☐ Resolution unsatisfactory ☐ No response within timeframe required by 42 C.F.R. § 483.10(j)(4) ☐ Resident/complainant believes raising the issue led to retaliation (separately prohibited by § 483.10(j)(1)(iv)).

9. RELIEF REQUESTED

The complainant requests that the recipient agencies, jointly and severally as appropriate, take the following actions:

• A. Open an Ombudsman case file and conduct an in-person interview with the resident in a confidential setting, consistent with 45 C.F.R. § 1324.11(e).
• B. Refer the complaint to the Division of Health Improvement for an unannounced complaint survey under 42 C.F.R. § 488.332.
• C. Refer suspected abuse, neglect, or exploitation to Adult Protective Services (1-866-654-3219) and to local law enforcement.
• D. Direct the facility to provide the resident with copies of the complete clinical record within two business days under 42 C.F.R. § 483.10(g)(2).
• E. Direct the facility to convene a person-centered care-plan meeting within seven (7) days, with the resident and authorized representative.
• F. Issue any deficiency citations and civil monetary penalties supported by the survey findings, including denial of payment for new admissions if warranted (42 U.S.C. § 1395i-3(h); § 1396r(h)).
• G. Prohibit any retaliatory transfer or discharge against the resident; require advance notice and bed-hold rights consistent with 42 C.F.R. § 483.15.
• H. Provide the resident, complainant, and Ombudsman with a written report of investigative findings.
• I. Such other and further relief as may be appropriate.

10. CROSS-REPORTS AND PARALLEL FILINGS

• ☐ APS report filed (1-866-654-3219). Confirmation / case number: [____].
• ☐ DHI complaint filed (1-800-752-8649). Confirmation / case number: [____].
• ☐ Law enforcement report. Agency: [____]. Case number: [____].
• ☐ AG Medicaid Fraud Control Unit referral. Confirmation: [____].
• ☐ CMS / Medicare beneficiary complaint (1-800-MEDICARE). Confirmation: [____].
• ☐ Civil tort counsel retained: [____].
• ☐ Litigation hold letter sent to facility: ☐ Yes ☐ No. Date: [__/__/____].

11. AUTHORIZATION, HIPAA, AND CONFIDENTIALITY

11.1. HIPAA authorization (where complainant is not the resident and access to protected health information is requested):

I, [RESIDENT NAME] (or authorized representative [NAME]), authorize the above-named facility, its providers, and any reviewing agency to disclose protected health information related to the resident to the New Mexico State Long-Term Care Ombudsman, the Division of Health Improvement, Adult Protective Services, and the named complainant for the limited purpose of investigating and resolving this complaint. This authorization is valid for one (1) year from the date signed and may be revoked in writing.

Resident / representative signature: [________________________________] Date: [__/__/____]

11.2. Ombudsman confidentiality. The Long-Term Care Ombudsman shall not disclose the complainant's or resident's identifying information without consent, except as permitted by 45 C.F.R. § 1324.11(e)(3) and 42 U.S.C. § 3058g(d).

11.3. Retaliation prohibited. 42 C.F.R. § 483.10(j)(1)(iv) prohibits the facility from interfering with, coercing, or retaliating against any resident or representative for filing a grievance or complaint.

12. SIGNATURE AND VERIFICATION

I declare under penalty of perjury under the laws of the State of New Mexico that the factual statements in this complaint are true and correct to the best of my knowledge and belief, and that I bring this complaint in good faith.

Complainant signature: [________________________________] Date: [__/__/____]

Printed name: [________________________________]

Resident signature (if competent and consents): [________________________________] Date: [__/__/____]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public — State of New Mexico

(My Commission Expires: [_______________])

13. NEW MEXICO PRACTICE NOTES

• Three-channel strategy. Most effective complaints are routed simultaneously to the Ombudsman (advocacy and resident voice), DHI (regulatory enforcement), and APS (when abuse, neglect, or exploitation of an incapacitated adult is alleged). The Ombudsman cannot impose sanctions; DHI can. APS can investigate the individual conduct of staff.
• Regulation transition. Effective July 1, 2024, the New Mexico nursing-home licensing rules at 7.9.2 NMAC were repealed and replaced by 8.370.16 NMAC under HCA. Older facility documents and complaint forms may still cite 7.9.2 NMAC; cite the current rule and add a parenthetical to the prior cite where helpful.
• Federal preemption / floor. OBRA-1987 sets a federal floor. Where state regulation is more protective, plead it. Where state regulation is silent, federal regulation governs.
• Staffing. CMS finalized minimum-staffing standards for long-term care facilities in 2024 (89 Fed. Reg. 40876). Phase-in dates and applicability are litigated; verify the current effective date and any injunctions before pleading per-shift staffing minima.
• Records access. 42 C.F.R. § 483.10(g)(2) entitles the resident (and authorized representative) to inspect records upon oral or written request and to receive copies within two business days at a reasonable cost.
• Involuntary discharge / transfer. Six grounds only under 42 C.F.R. § 483.15(c)(1)(i); thirty-day advance written notice required (with limited exceptions); appeal rights to the New Mexico Fair Hearings Bureau (8.352.2 NMAC) apply.
• Personal-needs allowance and trust accounts. Facility must maintain a separate personal-funds account and provide a quarterly accounting (42 C.F.R. § 483.10(f)(10)). Discrepancies may also trigger MFCU review.
• Tribal facilities. Where the facility is on tribal land or operated under a 638 contract, federal-tribal jurisdiction may modify state oversight. Cross-coordinate with tribal social services and IHS.
• Civil litigation parallel track. Facts supporting this complaint may also support a negligence, wrongful death, or NHRA-based claim. Preserve evidence with a litigation-hold letter and consult counsel before relying solely on the regulatory process.
• Ombudsman as advocate, not adjudicator. The Ombudsman acts at the direction of the resident and respects the resident's expressed wishes; it is not an enforcement agency. For corrective action and penalties, DHI is the regulator.

14. SOURCES AND REFERENCES

• New Mexico Long-Term Care Ombudsman Program (ALTSD) — https://www.aging.nm.gov/ombudsman/program-and-services/
• ALTSD main site — https://www.aging.nm.gov/
• HCA Division of Health Improvement — https://www.hca.nm.gov/division-of-health-improvement/
• HCA Health Facility Licensing & Certification — https://www.hca.nm.gov/health-facility-licensing-and-certification/
• DHI complaint hotline — 1-800-752-8649
• APS Statewide Intake — 1-866-654-3219 — https://altsd.nm.gov/protecting-adults/
• Ombudsman line — 1-866-451-2901
• 42 C.F.R. Part 483 (federal long-term care requirements) — https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483
• 42 U.S.C. § 1395i-3; § 1396r (Nursing Home Reform Act)
• 42 U.S.C. § 3058g; 45 C.F.R. Part 1324 (LTC Ombudsman Program)
• 8.370.16 NMAC (Requirements for Long-Term Care Facilities, eff. July 1, 2024)
• 7.8.2 NMAC (Assisted Living Facilities)
• NMSA § 24-1-1 et seq. (Public Health Act)
• NMSA § 27-7-14 et seq. (Adult Protective Services Act)
• CMS Care Compare — https://www.medicare.gov/care-compare/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in New Mexico must review and customize this document before service or filing. Citations and regulatory framework change — particularly given the 2024 transition from 7.9.2 NMAC to 8.370.16 NMAC and the ongoing litigation over CMS minimum-staffing rules — verify all authorities before use.