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AN ACT
RELATING TO PROFESSIONAL AND OCCUPATIONAL LICENSES; PROVIDING
FOR BONDING AND BACKGROUND CHECKS; CHANGING LICENSING FEES;
REVISING THE DISPOSITION OF THE PHARMACY FUND; AMENDING
SECTIONS OF THE PHARMACY ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 61-11-14 NMSA 1978 (being Laws 1969,
Chapter 29, Section 13, as amended) is amended to read:
"61-11-14. PHARMACY LICENSURE--WHOLESALE DRUG
DISTRIBUTION BUSINESS LICENSURE--REQUIREMENTS--FEES--
REVOCATION.--
A. Any person who desires to operate or maintain
the operation of a pharmacy or who engages in a wholesale drug
distribution business in this state shall apply to the board
for the proper license and shall meet the requirements of the
board and pay the fee for the license and its renewal.
B. The board shall issue the following classes of
licenses that shall be defined and limited by regulation of
the board:
(1) retail pharmacy;
(2) nonresident pharmacy;
(3) wholesale drug distributor;
(4) drug manufacturer;
(5) hospital pharmacy;
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(6) industrial health clinic;
(7) community health clinic;
(8) department of health public health
offices;
(9) custodial care facility;
(10) home care services;
(11) emergency medical services;
(12) animal control facilities;
(13) wholesaler, retailer or distributor of
veterinary drugs bearing the legend: "caution: federal law
restricts this drug to use by or on the order of a licensed
veterinarian". Such drugs may be sold or dispensed by any
person possessing a retail pharmacy license, wholesale drug
distributor's license or drug manufacturer's license issued by
the board, without the necessity of acquiring an additional
license for veterinary drugs;
(14) returned drugs processors;
(15) drug research facilities;
(16) drug warehouses;
(17) contact lens sellers;
(18) medicinal gas repackagers; and
(19) medicinal gas sellers.
C. Every application for the issuance or biennial
renewal of:
(1) a license for a retail pharmacy,
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nonresident pharmacy, hospital pharmacy or drug research
facility shall be accompanied by a fee set by the board in an
amount not to exceed three hundred dollars ($300) per year;
(2) a license for a wholesale drug
distributor, drug manufacturer or drug warehouse shall be
accompanied by a fee not to exceed one thousand dollars
($1,000) per year;
(3) a license for a custodial care facility
or a returned drugs processor business shall be accompanied by
a fee set by the board in an amount not to exceed two hundred
dollars ($200) per year; and
(4) a license for an industrial health
clinic; a community health clinic; a department of health
public health office; home care services; emergency medical
services; animal control facilities; or wholesaler, retailer
or distributor of veterinary drugs shall be accompanied by a
fee set by the board in an amount not to exceed two hundred
dollars ($200) per year.
D. If it is desired to operate or maintain a
pharmaceutical business at more than one location, a separate
license shall be obtained for each location.
E. Each application for a license shall be made on
forms prescribed and furnished by the board.
F. Any person making application to the board for
a license to operate a facility or business listed in
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Subsection B of this section in this state shall submit to the
board an application for licensure indicating:
(1) the name under which the business is to
be operated;
(2) the address of each location to be
licensed and the address of the principal office of the
business;
(3) in the case of a retail pharmacy, the
name and address of the owner, partner or officer or director
of a corporate owner;
(4) the type of business to be conducted at
each location;
(5) a rough drawing of the floor plan of
each location to be licensed;
(6) the proposed days and hours of operation
of the business; and
(7) other information the board may require,
including a criminal background check and financial history,
provided that manufacturers distributing their own products
that have been licensed or approved by the food and drug
administration shall be exempt from criminal background check
and financial history requirements pursuant to this section.
G. After preliminary approval of the application
for a license for any facility or business listed in
Paragraphs (1) through (8) and (10) through (19) of Subsection
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B of this section, a request for an inspection, together with
an inspection fee not to exceed two hundred dollars ($200),
shall be submitted to the board for each business location,
and an inspection shall be made of each location by the board
or its agent.
H. Following a deficiency-free inspection, the
executive director of the board may issue a temporary license
to the applicant. The temporary license shall expire at the
close of business on the last day of the next regular board
meeting.
I. Licenses, except temporary licenses provided
pursuant to Subsection H of this section, issued by the board
pursuant to this section are not transferable and shall expire
on the expiration date set by the board unless renewed. Any
person failing to renew a license on or before the expiration
date set by the board shall not have the license reinstated
except upon reapplication and payment of a reinstatement fee
set by the board in an amount not to exceed one hundred
dollars ($100) and all delinquent renewal fees.
J. The board, after notice and a refusal or
failure to comply, may suspend or revoke any license issued
under the provisions of the Pharmacy Act at any time
examination or inspection of the operation for which the
license was granted discloses that the operation is not being
conducted according to law or regulations of the board.
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K. Pharmaceutical sales representatives who carry
dangerous drugs shall provide the board with a written
statement from the representative's employer that describes
the employer's policy relating to the safety and security of
the handling of dangerous drugs and to the employer's
compliance with the federal Prescription Drug Marketing Act of
1987. Pharmaceutical sales representatives are not subject to
the licensing provisions of the Pharmacy Act."
Section 2. Section 61-11-19 NMSA 1978 (being Laws 1969,
Chapter 29, Section 18, as amended) is amended to read:
"61-11-19. FUND ESTABLISHED--DISPOSITION--METHOD OF
PAYMENT.--
A. There is established in the state treasury the
"pharmacy fund".
B. All funds received by the board and all money
collected under the Pharmacy Act or any other act administered
by the board shall be deposited with the state treasurer for
credit to the pharmacy fund.
C. Payments from the pharmacy fund shall be made
upon warrants of the secretary of finance and administration
on vouchers issued in accordance with the budget approved by
the department of finance and administration.
D. Amounts paid into the pharmacy fund prior to
October 1, 2005 pursuant to Paragraph (2) of Subsection C of
Section 61-11-14 NMSA 1978 shall be used for a prescription
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drug program for persons over the age of sixty-five; provided
that the board enters into an arrangement with a state agency
or a state-created entity for the operation of the program.
E. All amounts paid into the pharmacy fund shall
only be used for the purpose of meeting necessary expenses
incurred in the enforcement of the purposes of the Pharmacy
Act and any other acts administered by the board, the duties
imposed thereby and the promotion of pharmacy education and
standards in this state. All money unused at the end of the
fiscal year shall remain in the pharmacy fund for use in
accordance with the provisions of the Pharmacy Act.
F. All funds that may have accumulated to the
credit of the pharmacy fund shall be continued for use by the
board in administration of the Pharmacy Act."
Section 3. A new section of the Pharmacy Act is enacted
to read:
"CRIMINAL BACKGROUND CHECKS.--
A. The board may adopt rules that provide for
criminal background checks for all new licensees to include:
(1) requiring criminal history background
checks of applicants for licensure pursuant to the Pharmacy
Act;
(2) requiring applicants for licensure to be
fingerprinted;
(3) providing for an applicant who has been
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denied licensure to inspect or challenge the validity of the
background check record;
(4) establishing a fingerprint and
background check fee not to exceed seventy-five dollars
($75.00) to be paid by the applicant; and
(5) providing for submission of an
applicant's fingerprint cards to the federal bureau of
investigation to conduct a national criminal history
background check and to the department of public safety to
conduct a state criminal history check.
B. Arrest record information received from the
department of public safety and the federal bureau of
investigation shall be privileged and shall not be disclosed
to persons not directly involved in the decision affecting the
applicant.
C. Electronic live fingerprint scans may be used
when conducting criminal history background checks."
Section 4. A new section of the Pharmacy Act is enacted
to read:
"SURETY BONDS.--
A. The board may require surety bonds or other
equivalent means of security, as approved by the board, that
are provided by a third party such as insurance, an
irrevocable letter of credit or funds deposited in a trust
account or financial institution, to secure payment for any
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administrative or judicial penalties that may be imposed by
the board or the state and for any penalties or costs required
by board rule or disciplinary action.
B. Surety bonds or other equivalent means of
security as approved by the board and required in this section
shall apply to initial applicants or renewal applicants as a
condition for obtaining or maintaining licensure as a
nonresident pharmacy or wholesale drug distributor.
C. The board shall set by rule the amount and
conditions of the surety bond or other equivalent means of
security authorized in this section.
D. The board may waive the surety bond or other
requirements of this section if it determines that it is in
the best interest of the public to do so. Such waivers may be
granted under conditions established by board rule.
E. Manufacturers distributing their own products
that have been licensed or approved by the food and drug
administration and pharmacy warehouses that are engaged only
in intracompany transfers are exempt from this section.
F. A separate surety bond or other equivalent
means of security is not required for each company's separate
locations or for affiliated companies or groups when such
separate locations or affiliated companies or groups are
required to apply for or renew their wholesale distributor
license with the board."