HOUSE HEALTH AND GOVERNMENT AFFAIRS COMMITTEE SUBSTITUTE FOR
HOUSE BILL 124
50th legislature - STATE OF NEW MEXICO - first session, 2011
AN ACT
RELATING TO HEALTH CARE; AMENDING SECTIONS OF THE UNIFORM HEALTH-CARE DECISIONS ACT TO REQUIRE A SUPERVISING HEALTH-CARE PROVIDER TO MAKE CERTAIN DISCLOSURES TO PATIENTS BEFORE PROVIDING HEALTH CARE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 24-7A-1 NMSA 1978 (being Laws 1995, Chapter 182, Section 1, as amended) is amended to read:
"24-7A-1. DEFINITIONS.--As used in the Uniform Health-Care Decisions Act:
A. "advance health-care directive" means an individual instruction or a power of attorney for health care made, in either case, while the individual has capacity;
B. "agent" means an individual designated in a power of attorney for health care to make a health-care decision for the individual granting the power;
C. "capacity" means an individual's ability to understand and appreciate the nature and consequences of proposed health care, including its significant benefits, risks and alternatives to proposed health care and to make and communicate an informed health-care decision. A determination of lack of capacity shall be made only according to the provisions of Section 24-7A-11 NMSA 1978;
D. "emancipated minor" means an individual between the ages of sixteen and eighteen who has been married, who is on active duty in the armed forces or who has been declared by court order to be emancipated;
E. "emergency" means a situation in which there is an imminent threat of a disaster causing immediate peril to life that timely action can avert or minimize;
[E.] F. "guardian" means a judicially appointed guardian or conservator having authority to make a health-care decision for an individual;
[F.] G. "health care" means any care, treatment, service or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition;
[G.] H. "health-care decision" means a decision made by an individual or the individual's agent, guardian or surrogate, regarding the individual's health care, including:
(1) selection and discharge of health-care providers and institutions;
(2) approval or disapproval of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate;
(3) directions relating to life-sustaining treatment, including withholding or withdrawing life-sustaining treatment and the termination of life support; and
(4) directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care;
[H.] I. "health-care institution" means an institution, facility or agency licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business;
[I.] J. "health-care provider" means an individual licensed, certified or otherwise authorized or permitted by law to provide health care in the ordinary course of business or practice of a profession;
[J.] K. "individual instruction" means an individual's direction concerning a health-care decision for the individual made while the individual has capacity;
[K.] L. "life-sustaining treatment" means any medical treatment or procedure without which the individual is likely to die within a relatively short time, as determined to a reasonable degree of medical certainty by the primary physician;
[L.] M. "person" means an individual, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency or instrumentality or any other legal or commercial entity;
[M.] N. "physician" means an individual authorized to practice medicine or osteopathy;
[N.] O. "power of attorney for health care" means the designation of an agent to make health-care decisions for the individual granting the power, made while the individual has capacity;
[O.] P. "primary physician" means a physician designated by an individual or the individual's agent, guardian or surrogate to have primary responsibility for the individual's health care or, in the absence of a designation or if the designated physician is not reasonably available, a physician who undertakes the responsibility;
[P.] Q. "principal" means an adult or emancipated minor who, while having capacity, has made a power of attorney for health care by which the adult or emancipated minor delegates the right to make health-care decisions for the adult or emancipated minor to an agent;
[Q.] R. "protected person" means an adult or emancipated minor for whom a guardian has been appointed;
[R.] S. "qualified health-care professional" means a health-care provider who is a physician, physician assistant, nurse practitioner, nurse, psychologist or social worker;
[S.] T. "reasonably available" means readily able to be contacted without undue effort and willing and able to act in a timely manner considering the urgency of the patient's health-care needs;
[T.] U. "state" means a state of the United States, the District of Columbia, the commonwealth of Puerto Rico or a territory or insular possession subject to the jurisdiction of the United States;
[U.] V. "supervising health-care provider" means the primary physician or, if there is no primary physician or the primary physician is not reasonably available, the health-care provider who has undertaken primary responsibility for an individual's health care; and
[V.] W. "surrogate" means an individual, other than a patient's agent or guardian, authorized under the Uniform Health-Care Decisions Act to make a health-care decision for the patient."
SECTION 2. Section 24-7A-7 NMSA 1978 (being Laws 1995, Chapter 182, Section 7, as amended) is amended to read:
"24-7A-7. OBLIGATIONS OF HEALTH-CARE PROVIDER.--
A. Before implementing a health-care decision made for a patient, a supervising health-care provider shall promptly communicate to the patient the decision made and the identity of the person making the decision.
B. A patient is entitled to know who is supervising that patient's health care. Before a supervising health-care provider examines or performs a treatment or procedure on a patient for the first time in a hospital or urgent-care facility, the supervising health-care provider shall clearly communicate to the patient or the patient's agent, guardian, surrogate or other person with the authority to make health-care decisions on that patient's behalf:
(1) the supervising health-care provider's identity; and
(2) the title or nature of the supervising health-care provider's professional license, including whether that health-care provider is licensed as a medical doctor, a doctor of osteopathy, a physician assistant or a certified nurse practitioner or is practicing as a resident or a fellow.
C. If the supervising health-care provider is acting in a capacity as a locum tenens or on a temporary basis through a staffing agency at the health-care institution at which the patient is receiving health care, the supervising health-care provider shall inform the patient of that fact.
D. A supervising health-care provider acting as a locum tenens or on a temporary basis shall have a name tag that clearly identifies that the supervising health-care provider is working on a temporary basis.
E. The provisions of Subsections B, C and D of this section shall not apply to:
(1) outpatient settings other than urgent-care facilities and emergency departments;
(2) those instances where a patient cannot communicate or the patient's agent, guardian, surrogate or other person with the authority to make health-care decisions on the patient's behalf is not reasonably available. In those instances where the patient's agent, guardian, surrogate or other person with the authority to make health-care decisions on the patient's behalf is not available, the supervising health-care provider shall make reasonable efforts to contact that person; and
(3) emergencies.
[B.] F. A supervising health-care provider who knows of the existence of an advance health-care directive, a revocation of an advance health-care directive, a challenge to a determination of lack of capacity or a designation or disqualification of a surrogate shall promptly record its existence in the patient's health-care record and, if it is in writing, shall request a copy and, if one is furnished, shall arrange for its maintenance in the health-care record.
[C.] G. A supervising health-care provider who makes or is informed of a determination that a patient lacks or has recovered capacity or that another condition exists that affects an individual instruction or the authority of an agent, guardian or surrogate shall promptly record the determination in the patient's health-care record and communicate the determination to the patient and to any person then authorized to make health-care decisions for the patient.
[D.] H. Except as provided in Subsections [E and F] I and J of this section, a health-care provider or health-care institution providing care to a patient shall comply:
(1) before and after the patient is determined to lack capacity, with an individual instruction of the patient made while the patient had capacity;
(2) with a reasonable interpretation of [that] the individual instruction made by a person then authorized to make health-care decisions for the patient; and
(3) with a health-care decision for the patient that is not contrary to an individual instruction of the patient and is made by a person then authorized to make health-care decisions for the patient, to the same extent as if the decision had been made by the patient while having capacity.
[E.] I. A health-care provider may decline to comply with an individual instruction or health-care decision for reasons of conscience. A health-care institution may decline to comply with an individual instruction or health-care decision if the instruction or decision is contrary to a policy of the health-care institution that is expressly based on reasons of conscience and if the policy was timely communicated to the patient or to a person then authorized to make health-care decisions for the patient.
[F.] J. A health-care provider or health-care institution may decline to comply with an individual instruction or health-care decision that requires medically ineffective health care or health care contrary to generally accepted health-care standards applicable to the health-care provider or health-care institution. "Medically ineffective health care" means treatment that would not offer the patient any significant benefit, as determined by a physician.
[G.] K. A health-care provider or health-care institution that declines to comply with an individual instruction or health-care decision shall:
(1) promptly so inform the patient, if possible, and any person then authorized to make health-care decisions for the patient;
(2) provide continuing care to the patient until a transfer can be effected; and
(3) unless the patient or person then authorized to make health-care decisions for the patient refuses assistance, immediately make all reasonable efforts to assist in the transfer of the patient to another health-care provider or health-care institution that is willing to comply with the individual instruction or decision.
[H.] L. A health-care provider or health-care institution may not require or prohibit the execution or revocation of an advance health-care directive as a condition for providing health care.
[I.] M. The Uniform Health-Care Decisions Act does not require or permit a health-care institution or health-care provider to provide any type of health care for which the health-care institution or health-care provider is not licensed, certified or otherwise authorized or permitted by law to provide."
- 10 -