2005 Committee Substitute for HB0921BIS

HOUSE BUSINESS AND INDUSTRY COMMITTEE SUBSTITUTE FOR

HOUSE BILLS 890 & 921

47th legislature - STATE OF NEW MEXICO - first session, 2005

AN ACT

RELATING TO HEALTH; ENACTING THE NATUROPATHIC MEDICINE PRACTICE ACT; CREATING A BOARD; PROVIDING POWERS AND DUTIES; CREATING A FUND; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. SHORT TITLE.--This act may be cited as the "Naturopathic Medicine Practice Act".

Section 2. LEGISLATIVE PURPOSE.--The purpose of the Naturopathic Medicine Practice Act is to protect the public from the unprofessional, improper, incompetent and unlawful practice of naturopathic medicine and traditional naturopathy by providing laws and rules to govern the practice of naturopathic medicine and traditional naturopathy.

Section 3. DEFINITIONS.--As used in the Naturopathic Medicine Practice Act:

A. "board" means the board of naturopathic medicine and traditional naturopathy;

B. "department" means the regulation and licensing department;

C. "doctor of naturopathic medicine", "N.M.D." or "naturopathic physician" means a person licensed to practice naturopathic medicine as an independent primary health care provider and collaborate with other health care providers as necessary;

D. "doctor of traditional naturopathy" or "D.T.N." means a person who has satisfied the requirements of the Naturopathic Medicine Practice Act and is licensed to practice traditional naturopathy;

E. "homeopathy" means a system of medicine based on the use of infinitesimal doses of medicines capable of producing symptoms similar to those of the disease treated and stimulating the body's intrinsic self-healing, as listed in the homeopathic pharmacopoeia of the United States;

F. "hygiene and immunizations" means the use of such preventive techniques as personal hygiene, asepsis, public health prevention and reporting responsibilities and immunizations;

G. "medicines of mineral, animal and botanical origin" means medicines derived from animal organs, food, food extracts, tissues and oils, minerals and plants, plant extracts administered orally or topically, excluding legend drugs, with the following exceptions: vitamins, minerals, natural hormones, whole gland thyroid and substances as exemplified in traditional botanical, homeopathics and herbal pharmacopoeia and non-drug contraceptive devices;

H. "natural hormones" means plant- and glandular-derived hormones;

I. "naturopathic medical school" means a naturopathic medical education program accredited by a council on naturopathic medical education or an equivalent federally recognized accrediting body for the naturopathic medical profession recognized by the board and which education program is an institution or part of an institution of higher education either accredited or a candidate for accreditation by a regional institutional accrediting agency recognized by the United States secretary of education;

J. "naturopathic medicine" means a system of health care practice by doctors of naturopathic medicine for the prevention, diagnosis and treatment of human health conditions, injuries and diseases that uses education, natural medicines, homeopathy, naturopathic physical medicine and therapies to support and stimulate a person's intrinsic self-healing processes, including, for diagnostic purposes, physical and orificial examinations, phlebotomy, diagnostic imaging, electrocardiograms, ultrasound, clinical laboratory tests, examinations and physiological function tests;

K. "naturopathic physical medicine" means the use of physical agents of air, water, heat, cold, sound, light, electromagnetism, electricity, soft tissue therapy, joint mobilization and therapeutic exercise in the resolution of human ailments and conditions;

L. "traditional naturopathic school" means a facility that provides an educational program in traditional naturopathic training that is approved by the board and accredited by a national or international naturopathic association or recognized by the commission on higher education; and

M. "traditional naturopathy" means a system of health care practiced by doctors of traditional naturopathy for the prevention, assessment and evaluation and treatment of human health conditions, injuries and diseases that uses education, natural medicines, homeopathy and therapies to support and stimulate a person's intrinsic self-healing processes, including naturopathic physical medicine.

Section 4. SCOPE OF PRACTICE.--

A. A doctor of traditional naturopathy may use for preventive and therapeutic purposes the following natural medicines and therapies: food, food extracts, certain medicines of mineral, animal and botanical origin, vitamins, minerals, enzymes, digestive aids, whole gland thyroid, plant homeopathic preparations, topical natural medicines, counseling, biofeedback, dietary therapy, hygiene and naturopathic physical medicine, nutritional and lifestyle counseling and traditional naturopathic physical examinations.

B. A doctor of naturopathic medicine may engage in those preventive and therapeutic practices set forth in Subsection A of this section, may prescribe and dispense natural hormones, therapeutic devices, except for those used exclusively by practitioners licensed pursuant to Chapter 61, Article 14A NMSA 1978, and barriers for contraception, and may, for diagnostic purposes, use physical and orificial examinations, diagnostic imaging, electrocardiograms, ultrasound, clinical laboratory tests, phlebotomy, examinations and physiological function tests.

Section 5. LICENSE REQUIRED.--Unless licensed pursuant to the Naturopathic Medicine Practice Act, a person shall not:

A. advertise, hold out to the public or represent in any manner that the person is licensed to practice traditional naturopathy or naturopathic medicine in the state; or

B. maintain, manage or operate a traditional naturopathic school offering education, instruction or training in traditional naturopathy unless the school is approved by the board.

Section 6. USE OF TERMS.--A person licensed as a doctor of traditional naturopathy pursuant to the provisions of the Naturopathic Medicine Practice Act, in all promotion and advertising services to the public, shall use the title "doctor of traditional naturopathy" or the designation of "D.T.N.". A person licensed pursuant to the provisions of the Naturopathic Medicine Practice Act as a doctor of naturopathic medicine may use the title "doctor of naturopathic medicine", "N.M.D." or "naturopathic physician" in all promotional and advertising services to the public. No person may use the terms "doctor of traditional naturopathy", "doctor of naturopathic medicine" or "naturopathic physician" or the initials "N.M.D." or "D.T.N." unless licensed to do so by the board or use the terms "naturopathic doctor", "doctor of naturopathy" or the initials "N.D.".

Section 7. EXEMPTIONS.--

A. Nothing in the Naturopathic Medicine Practice Act is intended to limit, interfere with or prevent a licensed health care professional from practicing within the scope of that license.

B. A person who provides other natural health care services shall not be in violation of any law relating to the healing arts as long as the person does not:

(1) perform surgery or any other procedure that punctures the skin of any person;

(2) prescribe or administer x-ray radiation to any person;

(3) prescribe or administer a legend drug or controlled substance to any person;

(4) recommend to any person the discontinuance of a legend drug or controlled substance prescribed by a licensed health care practitioner;

(5) willfully diagnose or treat a physical or mental health condition of any person and in so doing cause significant bodily injury, significant physical or mental illness or death; or

(6) hold out, state, indicate, advertise or imply to any person that he is licensed, certified or registered under any law relating to the healing arts in this state.

C. A person providing health care services who is not licensed, certified or registered under any other provision of law relating to the healing arts prior to providing such services shall disclose to the client in a plainly worded written statement:

(1) the fact that he is not licensed, certified or registered under any provision of law relating to the healing arts by this state;

(2) the nature of the services to be provided and the theory upon which the services are based; and

(3) the degrees, training, experience, credentials or other qualifications of the practitioner regarding the health care services being provided.

D. A person providing health care services who is not licensed, certified or registered under any other provision of law relating to the healing arts by this state shall obtain a signed acknowledgment from the client stating that the client has been provided with the information described in this section, and the signed acknowledgment must be maintained for two years by the person providing the services. The client shall be provided with a copy of the signed acknowledgment.

E. Enforcement of the Naturopathic Medicine Practice Act shall be by the superintendent of regulation and licensing pursuant to the Uniform Licensing Act.

Section 8. BOARD CREATED--APPOINTMENT--OFFICERS--COMPENSATION.

A. The "board of naturopathic medicine and traditional naturopathy" is created.

B. The board is administratively attached to the regulation and licensing department.

C. The board consists of five members appointed by the governor for terms of three years each. Two members shall be doctors of naturopathic medicine and two members shall be doctors of traditional naturopathy, all of whom shall have been residents of and practiced naturopathic medicine or traditional naturopathy, respectively, in New Mexico for at least three years immediately preceding the date of their appointment. One member shall be appointed by the governor to represent the public and shall be a resident of New Mexico.

D. Members shall be appointed for staggered terms of three years; provided that for initial terms, two members shall be appointed for three years, two for two years and one for one year. Terms of board members shall expire on June 30. A board member shall serve until a successor has been appointed and qualified. Vacancies shall be filled for the remainder of the unexpired term in the same manner as the original appointment.

E. A board member shall not serve more than two consecutive full terms, and a board member who fails to attend three consecutive meetings, after receiving proper notice, shall be recommended for removal as a board member unless excused for reasons established by the board.

F. The board shall elect annually from its membership a chair and other officers as necessary to carry out its duties.

G. The board shall meet at least once each year. Other meetings may be called by the chair, a majority of board members or the governor. A simple majority of board members constitutes a quorum of the board.

H. Members of the board may be reimbursed as provided in the Per Diem and Mileage Act but shall receive no other compensation, perquisite or allowance. The board may waive any payment of per diem or mileage.

Section 9. BOARD--POWERS AND DUTIES.--The board may:

A. enforce the provisions of the Naturopathic Medicine Practice Act;

B. adopt, publish and file, in accordance with the Uniform Licensing Act and the State Rules Act, all rules necessary for the implementation and enforcement of the provisions of the Naturopathic Medicine Practice Act;

C. adopt a code of ethics;

D. adopt and use a seal;

E. adopt rules implementing continuing education requirements;

F. administer oaths and take testimony on any matters within the board's jurisdiction;

G. conduct hearings upon charges relating to the discipline of licensees, including the denial, suspension or revocation of a license or the supervision or admonition of a licensee, in accordance with the Uniform Licensing Act;

H. issue "specialty" or "certificate of qualification" documents in specialized fields or areas of practice related to naturopathic medicine, based upon education and training;

I. grant, deny, renew, suspend, limit or revoke licenses to practice traditional naturopathy or naturopathic medicine;

J. provide for the examination of applicants for licensure as doctor of naturopathic medicine or doctor of traditional naturopathy and establish and collect fees for each type of license;

K. keep a record of all examinations held, together with the names and addresses of all persons taking the examinations, and the examination results;

L. notify each applicant in writing of the results of an examination within twenty-one days after the results of the examination are available to the board;

M. keep a licensee record in which the names, addresses and license numbers of all licensees shall be recorded together with a record of all license renewals, suspensions and revocations;

N. provide for the granting and renewal of licenses; and

O. keep an accurate record of all its meetings, receipts and disbursements.

Section 10. REQUIREMENTS FOR LICENSURE.--The board shall grant a license to practice as a doctor of naturopathic medicine or as a doctor of traditional naturopathy to a person who submits in a timely manner:

A. the completed application for licensure on the form provided by the board;

B. all documentation required by the board;

C. the required fees;

D. proof that the applicant has completed a board-approved education program in traditional naturopathy or naturopathic medicine; and

E. proof that the applicant has passed an examination approved and required by the board.

Section 11. GRANDFATHER PROVISION.--

A. For one year from the effective date of the rules adopted by the board to implement the Naturopathic Medicine Practice Act, the board shall grant a license to practice as a doctor of naturopathic medicine to a person who submits in a timely manner:

(1) the completed application for licensure on the form provided by the board;

(2) all documentation required by the board;

(3) the required fees;

(4) proof that the applicant has completed an education program in naturopathic medicine approved by a council on naturopathic medical education or an equivalent accrediting agency recognized by the board and has passed a nationally accepted examination for doctors of naturopathic medicine; and

(5) proof that the applicant has provided naturopathic medicine services in New Mexico for at least three years immediately preceding making the application.

B. For one year from the effective date of the rules adopted by the board to implement the Naturopathic Medicine Practice Act, the board shall grant a license to practice as a doctor of traditional naturopathy to a person who submits in a timely manner:

(1) the completed application for licensure on the form provided by the board;

(2) all documentation required by the board;

(3) the required fees; and

(4) proof that the applicant has:

(a) completed a board-approved education program in traditional naturopathy;

(b) provided traditional naturopathy services in New Mexico for at least three years immediately preceding making the application; or

Section 12. EXAMINATIONS.--The board:

A. shall establish procedures to ensure that examinations for licensure are offered at least once a year;

B. shall establish the deadline for

receipt of applications for licensure examinations and other rules relating to the taking and retaking of licensure examinations;

C. shall establish the passing grades for

its approved examinations;

D. may approve, and use as a basis for

licensure, the examinations that are used for national certification, including, for doctors of naturopathic medicine, a competency-based national licensing examination administered by a North American board of naturopathic examiners or an equivalent agency recognized by the board;

E. shall require each qualified applicant

to pass a validated, objective written examination that covers areas that are not included in other examinations approved by the board; and

F. shall require that each applicant has completed a board-approved educational program in either traditional naturopathy or naturopathic medicine.

Section 13. REQUIREMENTS FOR TEMPORARY LICENSURE.--

A. The board may grant a temporary license to a person who:

(1) is licensed to practice naturopathic

medicine or traditional naturopathy in another state, district or territory of the United States or in a foreign country and who has met all the requirements for temporary licensure to practice in New Mexico, as determined by the board;

(2) submits the completed application for

licensure on the form provided by the board;

(3) submits the required documentation,

including proof of adequate education and training, as determined by the board;

(4) submits the required temporary licensure

application fee; and

(5) submits an affidavit stating that the

applicant has not been found guilty of unprofessional conduct or incompetence.

B. A temporary licensee may engage only in those

activities authorized on the temporary license.

C. A temporary license may be issued for a

period of time not to exceed the time necessary to notify applicants of passage or failure of the next licensure examination.

Section 14. LICENSURE BY ENDORSEMENT.--The board may grant a license to practice naturopathic medicine or traditional naturopathy to a person who is licensed as a doctor of naturopathic medicine or a doctor of traditional naturopathy, or its equivalent in another state or a United States territory in good standing and is a graduate of a naturopathic medical school or a traditional naturopathic school if the applicant:

A. submits the completed application for licensure by endorsement on the form provided by the board, including proof of licensure in good standing in all states in which the applicant is or has been licensed;

B. submits the required documentation as determined

by the board;

C. submits the required fee for application for

licensure by endorsement;

D. submits an affidavit stating that the applicant

has not been found guilty of unprofessional conduct or incompetence;

E. has passed the board-approved examination

that demonstrates knowledge of and skill in the application of naturopathic medicine or traditional naturopathy and has since maintained uninterrupted licensure in a state with licensure standards at least equivalent to New Mexico's; and

F. has passed a written examination on New Mexico

laws and rules that pertain to the practice of naturopathic medicine and traditional naturopathy.

Section 15. NATUROPATHIC SCHOOLS AND SPECIALTY OR CERTIFICATE OF QUALIFICATION PROGRAMS.--

A. The board shall establish by rule procedures for approval of traditional naturopathic schools, naturopathic medical schools, continuing education and speciality and certificate of qualification education, pursuant to the Naturopathic Medicine Practice Act.

B. The board shall not approve traditional naturopathic school educational programs that provide less than one thousand five hundred classroom hours or ninety semester credits of training and may include instruction in:

(1) anatomy, physiology and pathology;

(2) nutritional information that may include food, food extracts, dietary therapy and nutritional counseling;

(3) medicines of mineral, animal and botanical origin that may include vitamins, minerals, plant substances, homeopathic preparations, topical medicines, enzymes, digestive aids and whole gland thyroid;

(4) naturopathic physical medicine, bodywork and hygiene;

(5) biofeedback and lifestyle counseling;

(6) business, including ethics;

(7) hydrotherapy;

(8) first aid and cardiopulmonary resuscitation; and

(9) traditional naturopathic examination and diagnosis.

Section 16. CONTINUING EDUCATION--PROGRAM APPROVAL.--The board shall establish by rule the amount and program criteria, including provider registration, for continuing education required for license renewal.

Section 17. LICENSE RENEWAL.--

A. A licensee shall renew a license annually by submitting, prior to the date established by the board:

(1) the completed application for renewal on the form provided by the board; and

(2) the required renewal fee.

B. The board may require proof of continuing education and other requirements for renewal.

C. A sixty-day grace period shall be allowed for each licensee after the end of the licensing period, during which time the license may be renewed by submitting:

(1) the completed application for renewal on the form provided by the board;

(2) the required renewal fee; and

(3) the required late fee.

D. A license not renewed at the end of the grace period shall be considered expired, and the licensee shall not be eligible to practice within the state. The board may extend the reinstatement period and fees in extenuating circumstances, to be determined on a case-by-case basis.

Section 18. FEES.--The board shall establish a schedule of reasonable nonrefundable fees not to exceed the following amounts:

A. application for licensure, five hundred dollars

($500);

B. application for reciprocal licensure, five

hundred dollars ($500);

C. application for temporary licensure, two hundred fifty dollars ($250);

D. examination, not including the cost of any

nationally recognized examination, two hundred dollars ($200);

E. annual license renewal, five hundred dollars

($500);

F. late fee for license renewal, one hundred dollars ($100);

G. expired license renewal, seven hundred dollars ($700);

H. annual continuing education provider

registration, two hundred dollars ($200); and

I. reasonable fees for necessary administrative

expenses.

Section 19. DISCIPLINARY PROCEEDINGS--JUDICIAL REVIEW--APPLICATION OF UNIFORM LICENSING ACT.--

A. In accordance with the procedures contained in

the Uniform Licensing Act, the board may deny a license or revoke or suspend any permanent or temporary license under the Naturopathic Medicine Practice Act upon findings by the board that the licensee or applicant:

(1) is guilty of fraud or deceit in procuring

or attempting to procure a license;

(2) has been convicted of a felony. A

certified copy of the record of conviction shall be conclusive evidence of such conviction;

(3) is guilty of incompetence as defined by

board rule;

(4) is habitually intemperate or is addicted

to the use of alcohol or habit-forming drugs or is addicted to any vice to such a degree as to render him unfit to practice as a doctor of naturopathic medicine;

(5) is guilty of unprofessional conduct, as

defined by board rule;

(6) is guilty of a violation of the

Controlled Substances Act;

(7) has violated a provision of the

Naturopathic Medicine Practice Act or rules promulgated

by the board;

(8) is guilty of failing to furnish the board,

its investigators or representatives with information requested by the board;

(9) is guilty of willfully or negligently

practicing beyond the scope of naturopathic medicine or traditional naturopathy;

(10) is guilty of aiding or abetting the

practice of naturopathic medicine or traditional naturopathy by a person not licensed by the board;

(11) is guilty of practicing or attempting to

practice under an assumed name;

(12) advertises by means of knowingly false

statements;

(13) advertises or attempts to attract

patronage in an unethical manner prohibited by the Naturopathic Medicine Practice Act or the rules of the board;

(14) has been declared mentally incompetent by

regularly constituted authorities;

(15) has had a license, certificate or

registration to practice as a doctor of traditional naturopathy or a doctor of naturopathic medicine revoked, suspended or denied in any jurisdiction of the United States or a foreign country for actions of the licensee similar to acts described in this subsection; or

(16) fails, when diagnosing and treating a

patient, to possess or apply the knowledge or to use the skill and care ordinarily used by reasonably well-qualified doctors of traditional naturopathy or naturopathic medicine practicing under similar circumstances, giving due consideration to the locality involved.

B. Disciplinary proceedings may be instituted by a complaint of any person, pursuant to the Uniform Licensing Act. C. Any person filing a complaint shall be

immune from liability arising out of civil action if the complaint is filed in good faith and without actual malice.

D. If a licensee is found by the board to have violated the Naturopathic Medicine Practice Act, the licensee shall bear the costs of disciplinary proceedings.

Section 20. FUND CREATED.--

A. The "naturopathic medicine fund" is created in the state treasury.

B. All money received by the board pursuant to the Naturopathic Medicine Practice Act shall be deposited with the state treasurer for credit to the naturopathic medicine fund. The state treasurer shall invest the fund as other state funds are invested, and income from investment of the fund shall be credited to the fund. All balances in the fund shall remain in the fund and shall not revert to the general fund.

C. The fund shall be administered by the board, and money in the fund is appropriated by the legislature to the department to meet the necessary expenses incurred in carrying out the provisions of the Naturopathic Medicine Practice Act. Money in the fund shall be expended upon warrants issued by the secretary of finance and administration upon receipt of vouchers signed by the superintendent of the department.

Section 21. PENALTIES.--A person who violates a provision of the Naturopathic Medicine Practice Act is guilty of a misdemeanor and upon conviction shall be punished as provided in Section 31-19-1 NMSA 1978.

Section 22. CRIMINAL OFFENDER EMPLOYMENT ACT.--The provisions of the Criminal Offender Employment Act shall govern consideration of criminal records required or permitted by the Naturopathic Medicine Practice Act.

Section 23. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The board of naturopathic medicine is terminated on July 1, 2009 pursuant to the Sunset Act. The board shall continue to operate according to the Naturopathic Medicine Practice Act until July 1, 2010. Effective July 1, 2010, the Naturopathic Medicine Practice Act is repealed.

Section 24. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2005.

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