Section 12. Correction Of Deficiencies

When the licensing authority has determined deficiencies exist, the facility must correct the deficiencies according to the following time frames: A. Immediate response: The risk of injury or harm created or presented by the Class A and B deficiencies must be immediately eliminated. Under no circumstance should a situation that presents a risk of injury or harm to residents be allowed to continue. The facility must immediately stop the risk of injury or harm, even if the Class A or B deficiency is not corrected, by eliminating such risk of injury or harm. The facility, in addition to any other sanction imposed by the licensing authority, shall submit a plan of correction addressing systemic causes of the deficiencies within a determinate period of time approved by the licensing authority. B. Plan of correction: All deficiencies must be corrected within a fixed period of time approved by the licensing authority. C. Failure to timely correct: A separate civil monetary penalty may be imposed for each uncorrected Class A, Class B or Class C deficiency for each day that the particular violation continues beyond the date specified for correction. [8.370.4.12 NMAC - N, 7/1/2024] 8.370.4.13 CIVIL MONETARY PENALTIES; INITIAL BASE PENALTY: The authority shall impose civil monetary penalties in accordance with these regulations on licensed facilities, not to exceed $5,000 per day. A. Civil monetary penalty; initial base penalty assessed: An initial base penalty amount is assessed when a civil monetary penalty is imposed. The base penalty amount is calculated at the rate of the most serious deficiency. For example, the base penalty amount is assessed at the rate applicable to a class A deficiency when the survey or investigation results in citation of regulatory violations comprising class A, class B and class C deficiencies, because the most serious regulatory violation is the class A deficiency enalty is imposed. The base penalty amount is calculated at the rate of the most serious deficiency. For example, the base penalty amount is assessed at the rate applicable to a class A deficiency when the survey or investigation results in citation of regulatory violations comprising class A, class B and class C deficiencies, because the most serious regulatory violation is the class A deficiency. The base penalty is assessed once for the deficiencies cited by the licensing authority during any particular survey or investigation. The base penalty amount is usually greater than the daily penalty amount for the same deficiency. B. Civil monetary penalty; initial base penalty amount: The licensing authority has the discretion to impose an initial base penalty at any amount within the range for each deficiency level. (1) Class A deficiency: not less than $500 and not greater than $5,000. (2) Class B deficiency: not less than $300 and not greater than $3,000. (3) Class C deficiency: not less than $100 and not greater than $500. C. Doubling authorized for repeat violations: Where the facility was assessed a civil monetary penalty for class A or B deficiencies within the previous 24 months, the initial base penalty amount is doubled for each instance of the licensed facility's noncompliance with applicable regulation(s) previously assessed as a class A or B deficiency. Where the facility was assessed a civil monetary penalty for a class C deficiency within the previous 24 months, the initial base penalty amount may be doubled for the facility's noncompliance with the applicable regulation(s) previously assessed as a class C deficiency. If such doubling results in civil monetary penalties in excess of $5,000 per day, then the civil monetary penalty is $5,000 per day. [8.370.4.13 NMAC - N, 7/1/2024] 8.370.4.14 CIVIL MONETARY PENALTY; DAILY PENALTY: A the previous 24 months, the initial base penalty amount may be doubled for the facility's noncompliance with the applicable regulation(s) previously assessed as a class C deficiency. If such doubling results in civil monetary penalties in excess of $5,000 per day, then the civil monetary penalty is $5,000 per day. [8.370.4.13 NMAC - N, 7/1/2024] 8.370.4.14 CIVIL MONETARY PENALTY; DAILY PENALTY: A. Accrual: The daily civil monetary penalty amount accrues from the date of harm or injury, or from the date of the regulatory noncompliance, or from the date of the facility's receipt of notice of the intermediate sanction, at the discretion of the licensing authority. The daily civil monetary penalty continues until notice is provided to the licensing authority that all the deficiencies which were originally cited and relied upon in calculating the amount of the daily penalty are corrected. No piecemeal reduction of the daily penalty is available for partial correction of regulatory violations cited as the basis for all or part of the daily penalty. B. Calculation of amount: For a class A, class B, or class C deficiency, a daily civil monetary penalty is determined by multiplying the facility's licensed capacity times the facility penalty rate, times the severity index. The sum of the civil penalties for each class A, class B and class C deficiency is the total daily civil monetary 8.370.4 NMAC 5 penalty amount for all class A, class B and class C deficiencies. For each day that the total daily civil monetary penalty for each class A, class B and repeat class C deficiency exceeds $5,000, the civil monetary penalty is $5,000. Expressed as a formula, the calculation of the civil monetary penalty amount per deficiency equals the lesser of either: (1) $5,000; or (2) (licensed capacity) x (facility penalty rate) x (severity index). [8.370.4.14 NMAC - N, 7/1/2024] 8.370.4.15 CALCULATION OF AMOUNT OF CIVIL MONETARY PENALTY - DOUBLING FOR REPEAT DEFICIENCIES: A deficiency exceeds $5,000, the civil monetary penalty is $5,000. Expressed as a formula, the calculation of the civil monetary penalty amount per deficiency equals the lesser of either: (1) $5,000; or (2) (licensed capacity) x (facility penalty rate) x (severity index). [8.370.4.14 NMAC - N, 7/1/2024] 8.370.4.15 CALCULATION OF AMOUNT OF CIVIL MONETARY PENALTY - DOUBLING FOR REPEAT DEFICIENCIES: A. General: In addition to doubling the base penalty, doubling the daily civil monetary penalty is authorized and is intended to eliminate repeat regulatory violations. Doubling occurs in instances where the facility was assessed a base penalty or a daily civil monetary penalty for class A or B deficiencies cited within the previous 24 months, and the facility is cited for noncompliance with one or more of the same regulations on the current survey or investigation for which the previous civil monetary penalty was assessed. The licensing authority has greater discretion to double the civil monetary penalty for class C deficiencies. Where the facility was assessed a civil monetary penalty for a class C deficiency within the previous 24 months, the civil monetary penalty may be doubled for the facility’s noncompliance with the same regulation that previously was assessed as a class C deficiency. If such doubling of the civil monetary penalty results in civil monetary penalties in excess of $5,000 per day, then the civil monetary penalty is $5,000 per day. B. Doubling; repeat class A or B deficiencies: The amount of the daily civil monetary penalty for a deficiency, as calculated above, shall be doubled for a second or subsequent violation of the same regulatory requirement or provision, the violation of which within the prior 24 month period, resulted in, or was part of a group of violations that resulted in, the imposition of intermediate sanctions or civil monetary penalties as class A or B deficiencies. C the daily civil monetary penalty for a deficiency, as calculated above, shall be doubled for a second or subsequent violation of the same regulatory requirement or provision, the violation of which within the prior 24 month period, resulted in, or was part of a group of violations that resulted in, the imposition of intermediate sanctions or civil monetary penalties as class A or B deficiencies. C. Doubling; repeat class C deficiencies: The amount of the daily civil monetary penalty may be doubled, in the discretion of the licensing authority, for a second or subsequent violation of the same regulatory requirement or provision, the violation of which within the prior 24 month period, resulted in, or was part of a group of violations that resulted in, the imposition of intermediate sanctions or in civil monetary penalties as a class C deficiency.