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AN ACT

RELATING TO THE PRACTICE OF MEDICINE; AMENDING AND ENACTING

CERTAIN SECTIONS OF THE MEDICAL PRACTICE ACT; PROVIDING AN

EXCEPTION TO THE PROHIBITION OF DISCLOSURE IN THE REVIEW

ORGANIZATION IMMUNITY ACT.

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

Section 1. Section 61-6-7.2 NMSA 1978 (being Laws 1997,

Chapter 187, Section 3, as amended) is amended to read:

"61-6-7.2. INACTIVE LICENSE.--

A. A physician assistant license shall expire

every two years on a date established by the board.

B. A physician assistant who notifies the board in

writing on forms prescribed by the board may elect to place

the physician assistant's license on an inactive status. A

physician assistant with an inactive license shall be excused

from payment of renewal fees and shall not practice as a

physician assistant.

C. A physician assistant who engages in practice

while the physician assistant's license is lapsed or on

inactive status is practicing without a license, and is

subject to disciplinary action and penalties.

D. A physician assistant requesting restoration

from inactive status shall pay the current renewal fee and

fulfill the requirement for renewal pursuant to the Physician

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Assistant Act.

E. The board may, in its discretion, summarily

suspend for nonpayment of fees the license of a physician

assistant who has not renewed the physician assistant's

license within ninety days of expiration.

F. A physician assistant who has not submitted an

application for renewal on or before the license expiration

date, but who has submitted an application for renewal within

forty-five days after the license expiration date, shall be

assessed a late fee.

G. A physician assistant who has not submitted an

application for renewal between forty-six and ninety days

after the expiration date shall be assessed a late fee."

Section 2. Section 61-6-10 NMSA 1978 (being Laws 1973,

Chapter 361, Section 6, as amended) is amended to read:

"61-6-10. SUPERVISING LICENSED PHYSICIAN--

RESPONSIBILITY.--

A. As a condition of licensure, all physician

assistants practicing in New Mexico shall inform the board of

the name of the licensed physician under whose supervision

they will practice. All supervising physicians shall be

licensed under the Medical Practice Act and shall be approved

by the board.

B. Every licensed physician supervising a licensed

physician assistant shall be individually responsible and

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liable for the performance of the acts and omissions

delegated to the physician assistant, provided that the

physician assistant is also responsible and liable for the

physician assistant's own acts and omissions. A physician

assistant shall be supervised by a physician as approved by

the board."

Section 3. Section 61-6-10.6 NMSA 1978 (being Laws

2001, Chapter 311, Section 6) is amended to read:

"61-6-10.6. INACTIVE LICENSE.--

A. An anesthesiologist assistant who notifies the

board in writing on forms prescribed by the board may elect

to place the anesthesiologist assistant's license on inactive

status. An anesthesiologist assistant with an inactive

license shall be excused from payment of renewal fees and

shall not practice as an anesthesiologist assistant.

B. An anesthesiologist assistant who engages in

practice while the anesthesiologist assistant's license is

lapsed or on inactive status is practicing without a license

and is subject to disciplinary action and penalties.

C. An anesthesiologist assistant requesting

restoration from inactive status shall pay the current

renewal fee and fulfill the requirement for renewal pursuant

to the Anesthesiologist Assistants Act."

Section 4. Section 61-6-10.10 NMSA 1978 (being Laws

2001, Chapter 311, Section 10) is amended to read:

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"61-6-10.10. SUPERVISING ANESTHESIOLOGIST--

RESPONSIBILITIES.--

A. Supervising anesthesiologists shall be licensed

to practice pursuant to the Medical Practice Act and shall be

approved by the board.

B. The anesthesiologist actually supervising the

licensed anesthesiologist assistant at the time is

individually responsible and liable for the acts and

omissions that the anesthesiologist assistant performs in the

scope of the anesthesiologist assistant's duties; provided

that the anesthesiologist assistant is also responsible and

liable for the anesthesiologist assistant's own acts and

omissions.

C. An anesthesiologist may supervise that number

of anesthesiologist assistants as permitted by the board."

Section 5. Section 61-6-15 NMSA 1978 (being Laws 1969,

Chapter 46, Section 6, as amended) is amended to read:

"61-6-15. LICENSE MAY BE REFUSED, REVOKED OR

SUSPENDED--LICENSEE MAY BE FINED, CENSURED OR REPRIMANDED--

PROCEDURE--PRACTICE AFTER SUSPENSION OR REVOCATION--PENALTY--

UNPROFESSIONAL AND DISHONORABLE CONDUCT DEFINED--FEES AND

EXPENSES.--

A. The board may refuse to license and may revoke

or suspend a license that has been issued by the board or a

previous board and may fine, censure or reprimand a licensee

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upon satisfactory proof being made to the board that the

applicant for or holder of the license has been guilty of

unprofessional or dishonorable conduct. The board may also

refuse to license an applicant who is unable to practice

medicine, or practice as a physician assistant or an

anesthesiologist assistant, pursuant to Section 61-7-3 NMSA

1978. All proceedings shall be as required by the Uniform

Licensing Act or the Impaired Health Care Provider Act.

B. The board may, in its discretion and for good

cause shown, place the licensee on probation on the terms and

conditions it deems proper for protection of the public, for

the purpose of rehabilitation of the probationer or both.

Upon expiration of the term of probation, if a term is set,

further proceedings may be abated by the board if the holder

of the license furnishes the board with evidence that the

licensee is competent to practice, is of good moral character

and has complied with the terms of probation.

C. If evidence fails to establish to the

satisfaction of the board that the licensee is competent and

is of good moral character or if evidence shows that the

licensee has not complied with the terms of probation, the

board may revoke or suspend the license. If a license to

practice in this state is suspended, the holder of the

license may not practice during the term of suspension. A

person whose license has been revoked or suspended by the

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board and who thereafter practices or attempts or offers to

practice in New Mexico, unless the period of suspension has

expired or been modified by the board or the license

reinstated, is guilty of a felony and shall be punished as

provided in Section 61-6-20 NMSA 1978.

D. "Unprofessional or dishonorable conduct", as

used in this section, means, but is not limited to because of

enumeration, conduct of a licensee that includes the

following:

(1) procuring, aiding or abetting a criminal

abortion;

(2) employing a person to solicit patients

for the licensee;

(3) representing to a patient that a

manifestly incurable condition of sickness, disease or injury

can be cured;

(4) obtaining a fee by fraud or

misrepresentation;

(5) willfully or negligently divulging a

professional confidence;

(6) conviction of an offense punishable by

incarceration in a state penitentiary or federal prison or

conviction of a misdemeanor associated with the practice of

the licensee. A copy of the record of conviction, certified

by the clerk of the court entering the conviction, is

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conclusive evidence;

(7) habitual or excessive use of intoxicants

or drugs;

(8) fraud or misrepresentation in applying

for or procuring a license to practice in this state or in

connection with applying for or procuring renewal, including

cheating on or attempting to subvert the licensing

examinations;

(9) making false or misleading statements

regarding the skill of the licensee or the efficacy or value

of the medicine, treatment or remedy prescribed or

administered by the licensee or at the direction of the

licensee in the treatment of a disease or other condition of

the human body or mind;

(10) impersonating another licensee,

permitting or allowing a person to use the license of the

licensee or practicing as a licensee under a false or assumed

name;

(11) aiding or abetting the practice of a

person not licensed by the board;

(12) gross negligence in the practice of a

licensee;

(13) manifest incapacity or incompetence to

practice as a licensee;

(14) discipline imposed on a licensee by

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this state or another state, including denial, probation,

suspension or revocation, based upon acts by the licensee

similar to acts described in this section. A certified copy

of the record of suspension or revocation of the state making

the suspension or revocation is conclusive evidence;

(15) the use of a false, fraudulent or

deceptive statement in a document connected with the practice

of a licensee;

(16) fee splitting;

(17) the prescribing, administering or

dispensing of narcotic, stimulant or hypnotic drugs for other

than accepted therapeutic purposes;

(18) conduct likely to deceive, defraud or

harm the public;

(19) repeated similar negligent acts;

(20) employing abusive billing practices;

(21) failure to report to the board any

adverse action taken against the licensee by:

(a) another licensing jurisdiction;

(b) a peer review body;

(d) a professional or medical society

or association;

(e) a governmental agency;

(f) a law enforcement agency; or

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(g) a court for acts or conduct similar

to acts or conduct that would constitute grounds for action

as defined in this section;

(22) failure to report to the board

surrender of a license or other authorization to practice in

another state or jurisdiction or surrender of membership on

any medical staff or in any medical or professional

association or society following, in lieu of and while under

disciplinary investigation by any of those authorities or

bodies for acts or conduct similar to acts or conduct that

would constitute grounds for action as defined in this

section;

(23) failure to furnish the board, its

investigators or representatives with information requested

by the board;

(24) abandonment of patients;

(25) being found mentally incompetent or

insane by a court of competent jurisdiction;

(26) injudicious prescribing, administering

or dispensing of a drug or medicine;

(27) failure to adequately supervise, as

provided by board rule, a medical or surgical assistant or

technician or professional licensee who renders health care;

(28) sexual contact with a patient or person

who has authority to make medical decisions for a patient,

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other than the spouse of the licensee;

(29) conduct unbecoming in a person licensed

to practice or detrimental to the best interests of the

public;

(30) the surrender of a license or

withdrawal of an application for a license before another

state licensing board while an investigation or disciplinary

action is pending before that board for acts or conduct

similar to acts or conduct that would constitute grounds for

action pursuant to this section;

(31) sexual contact with a former mental

health patient of the licensee, other than the spouse of the

licensee, within one year from the end of treatment;

(32) sexual contact with a patient when the

licensee uses or exploits treatment, knowledge, emotions or

influence derived from the previous professional

relationship;

(33) improper management of medical records,

including failure to maintain timely, accurate, legible and

complete medical records;

(34) failure to provide pertinent and

necessary medical records to a physician or patient of the

physician in a timely manner when legally requested to do so

by the patient or by a legally designated representative of

the patient;

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(35) undertreatment of pain as provided by

board rule;

(36) interaction with physicians, hospital

personnel, patients, family members or others that interferes

with patient care or could reasonably be expected to

adversely impact the quality of care rendered to a patient;

(37) soliciting or receiving compensation by

a physician assistant or anesthesiologist assistant from a

person who is not an employer of the assistant; or

(38) willfully or negligently divulging

privileged information or a professional secret.

E. As used in this section, "fee splitting"

includes offering, delivering, receiving or accepting any

unearned rebate, refunds, commission preference, patronage

dividend, discount or other unearned consideration, whether

in the form of money or otherwise, as compensation or

inducement for referring patients, clients or customers to a

person, irrespective of any membership, proprietary interest

or co-ownership in or with a person to whom the patients,

clients or customers are referred.

F. Licensees whose licenses are in a probationary

status shall pay reasonable expenses for maintaining

probationary status, including laboratory costs when

laboratory testing of biological fluids are included as a

condition of probation."

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Section 6. A new section of the Medical Practice Act,

Section 61-6-15.1 NMSA 1978, is enacted to read:

"61-6-15.1. SUMMARY SUSPENSION.--

A. The board may summarily suspend or restrict a

license without a hearing, simultaneously with or at any time

after the initiation of proceedings for a hearing provided

under the Uniform Licensing Act, if the board finds that

evidence in its possession indicates that:

(1) the licensee poses a clear and immediate

danger to the public health and safety if the licensee

continues to practice;

(2) the licensee has been adjudged mentally

incompetent or insane by a final order or adjudication by a

court of competent jurisdiction; or

(3) the licensee has plead guilty to or been

found guilty of a felony drug abuse offense or for any

violent criminal offense in this state or a substantially

equivalent criminal offense in another jurisdiction.

B. No licensee is required to comply with a

summary action until service has been made or the licensee

has actual knowledge of the order, whichever occurs first.

C. A person whose license is suspended or

restricted under this section is entitled to a hearing by the

board pursuant to the Uniform Licensing Act within fifteen

days from the date the licensee requests a hearing."

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Section 7. Section 61-6-16 NMSA 1978 (being Laws 1989,

Chapter 269, Section 12, as amended) is amended to read:

"61-6-16. REPORTING OF SETTLEMENTS AND JUDGMENTS,

PROFESSIONAL REVIEW ACTIONS AND ACCEPTANCE OF SURRENDERED

LICENSE--IMMUNITY FROM CIVIL DAMAGES--PENALTY.--

A. All entities that make payments under a policy

of insurance, self-insurance or otherwise in settlement or

satisfaction of a judgment in a medical malpractice action or

claim, hospitals, health care entities and professional

review bodies shall report to the board all payments relating

to malpractice actions or claims arising in New Mexico that

involve a licensee, all appropriate professional review

actions of licensees and the acceptance or surrender of

clinical privileges by a licensee while under investigation

or in lieu of an investigation. For the purposes of this

section, the meaning of these terms shall be as contained in

Section 431 of the federal Health Care Quality Improvement

Act of 1986, 42 USCA Section 11151.

B. The hospitals required to report under this

section, health care entities or professional review bodies

that provide such information in good faith shall not be

subject to suit for civil damages as a result of providing

the information.

C. A hospital, health care entity or professional

review body failing to comply with the reporting requirements

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provided in this section shall be subject to civil penalty

not to exceed ten thousand dollars ($10,000)."

Section 8. Section 61-6-19 NMSA 1978 (being Laws 1989,

Chapter 269, Section 15, as amended) is amended to read:

"61-6-19. FEES.--

A. The board shall impose the following fees:

(1) an application fee not to exceed four

hundred dollars ($400) for licensure by endorsement as

provided in Section 61-6-13 NMSA 1978;

(2) an application fee not to exceed four

hundred dollars ($400) for licensure by examination as

provided in Section 61-6-11 NMSA 1978;

(3) a triennial renewal fee not to exceed

four hundred fifty dollars ($450);

(4) a fee of twenty-five dollars ($25.00)

for placing a physician's license or a physician assistant's

license on inactive status;

(5) a late fee not to exceed one hundred

dollars ($100) for physicians who renew their license within

forty-five days after the required renewal date;

(6) a late fee not to exceed two hundred

dollars ($200) for physicians who renew their licenses

between forty-six and ninety days after the required renewal

date;

(7) a reinstatement fee not to exceed six

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hundred dollars ($600) for reinstatement of a revoked,

suspended or inactive license;

(8) a reasonable administrative fee for

verification and duplication of license or registration and

copying of records;

(9) a reasonable publication fee for the

purchase of a publication containing the names of all

practitioners licensed under the Medical Practice Act;

(10) an impaired physician fee not to exceed

one hundred fifty dollars ($150) for a three-year period;

(11) an interim license fee not to exceed

one hundred dollars ($100);

(12) a temporary license fee not to exceed

one hundred dollars ($100);

(13) a postgraduate training license fee not

to exceed fifty dollars ($50.00) annually;

(14) an application fee not to exceed one

hundred fifty dollars ($150) for physician assistants

applying for initial licensure;

(15) a licensure fee not to exceed one

hundred fifty dollars ($150) for physician assistants

biennial licensing and registration of supervising licensed

physician;

(16) a late fee not to exceed fifty dollars

($50.00) for physician assistants who renew their licensure

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within forty-five days after the required renewal date;

(17) a late fee not to exceed seventy-five

dollars ($75.00) for physician assistants who renew their

licensure between forty-six and ninety days after the

required renewal date;

(18) a reinstatement fee not to exceed one

hundred dollars ($100) for physician assistants who reinstate

an expired license;

(19) a processing fee not to exceed fifty

dollars ($50.00) for each change of a supervising licensed

physician for a physician assistant;

(20) a fee not to exceed three hundred

dollars ($300) annually for a physician supervising a

clinical pharmacist;

(21) an application and renewal fee for a

telemedicine license not to exceed four hundred dollars

($400);

(22) a reasonable administrative fee, not to

exceed the current cost of application for a license, may be

charged for reprocessing applications and renewals that

include minor but significant errors, and would otherwise be

subject to investigation and possible disciplinary action;

and

(23) a reasonable fee as established by the

department of public safety for nationwide and statewide

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criminal history screening of applicants and licensees.

B. All fees are nonrefundable and shall be used by

the board to carry out its duties efficiently."

Section 9. Section 61-6-23 NMSA 1978 (being Laws 1989,

Chapter 269, Section 19, as amended) is amended to read:

"61-6-23. INVESTIGATION--SUBPOENA.--

A. To investigate a complaint against a licensee,

the board may issue investigative subpoenas prior to the

issuance of a notice of contemplated action.

B. A review organization, acting pursuant to the

Review Organization Immunity Act, shall comply with an

investigative subpoena issued pursuant to this section, but

only after the review organization has taken action against a

health care provider that is reportable to the board. All

records received by the board from a review organization:

(1) are confidential and not public records

for the purposes of the Inspection of Public Records Act; and

(2) the review organization's compliance

with the investigative subpoena shall not be deemed a waiver

of any provision of the Review Organization Immunity Act by

the review organization.

C. The board shall give timely notice to the

review organization producing peer review records if the peer

review records are subpoenaed by a third party, and the

review organization shall have standing as an intervener to

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oppose such production in any action brought by other parties

requesting the production of documents produced by the review

organization.

D. The board shall not compel any person in the

person's capacity as a peer review member or any expert who

participates in a peer review process to participate in any

board investigation or action resulting from its receipt of

the peer review documents.

E. Only documents that are related to the review

organization's action that was reportable to the board shall

be required to be disclosed in response to the investigative

subpoena."

Section 10. Section 61-6-24 NMSA 1978 (being Laws 1989,

Chapter 269, Section 20) is amended to read:

"61-6-24. LIMITATIONS ON ACTIONS.--

A. No action that would have any of the effects

specified in Sections 61-6-15 and 61-6-15.1 NMSA 1978 may be

initiated by the board later than two years after it is

brought to the board's attention.

B. The time limitation contained in Subsection A

of this section shall be tolled by any civil or criminal

litigation in which the licensee or applicant is a party

arising substantially from the same facts, conduct,

transaction or transactions that would be the basis of the

board's decision."

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Section 11. Section 61-6-35 NMSA 1978 (being Laws 1979,

Chapter 40, Section 2, as amended) is amended to read:

"61-6-35. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--

The New Mexico medical board is terminated on July 1, 2009

pursuant to the Sunset Act. The board shall continue to

operate according to the provisions of the Medical Practice

Act until July 1, 2010. Effective July 1, 2010, the Medical

Practice Act is repealed."

Section 12. Section 41-9-5 NMSA 1978 (being Laws 1979,

Chapter 169, Section 5) is amended to read:

"41-9-5. CONFIDENTIALITY OF RECORDS OF REVIEW

ORGANIZATION.--All data and information acquired by a review

organization in the exercise of its duties and functions shall

be held in confidence and, unless subpoenaed pursuant to

Subsection B of Section 61-6-23 NMSA 1978, shall not be

disclosed to anyone except to the extent necessary to carry

out one or more of the purposes of the review organization or

in a judicial appeal from the action of the review

organization. No person described in Section 41-9-4 NMSA 1978

shall disclose what transpired at a meeting of a review

organization except to the extent necessary to carry out one

or more of the purposes of the review organization or in a

judicial appeal from the action of the review organization.

Information, documents or records otherwise available from

original sources shall not be immune from discovery or use in

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any civil action merely because they were presented during

proceedings of a review organization, nor shall any person who

testified before a review organization or who is a member of a

review organization be prevented from testifying as to matters

within the person's knowledge, but a witness cannot be asked

about opinions formed by the witness as a result of the review

organization's hearings."