46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO LICENSING; AMENDING THE CHIROPRACTIC PHYSICIAN PRACTICE ACT TO CLARIFY LICENSING REQUIREMENTS, EXPAND PRIVILEGES AND INCREASE PENALTIES; DELAYING REPEAL.

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

Section 1. Section 61-4-2 NMSA 1978 (being Laws 1968, Chapter 3, Section 2, as amended) is amended to read:

"61-4-2. DEFINITIONS.--As used in the Chiropractic Physician Practice Act:

[A. "chiropractic" means the science, art and philosophy of things natural, the science of locating and removing interference with the transmissions or expression of nerve forces in the human body by the correction of misalignments or subluxations of the articulations and adjacent structures, more especially those of the vertebral column and pelvis, for the purpose of restoring and maintaining health for treatment of human disease primarily by, but not limited to, adjustment and manipulation of the human structure. It shall include, but not be limited to, the use of all natural agencies to assist in the healing act, such as food, water, heat, cold, electricity, mechanical appliances, herbs, nutritional supplements, homeopathic remedies and any necessary diagnostic procedure, excluding invasive procedures, except as provided by the board by rule and regulation. It shall exclude operative surgery and prescription or use of controlled or dangerous drugs;

B. "board" means the New Mexico board of chiropractic;

C. "chiropractic physician" includes doctor of chiropractic, chiropractor and chiropractic physician and means a person who practices chiropractic as defined in the Chiropractic Physician Practice Act; and

D. "chiropractic assistant" means a person who practices under the on-premises supervision of a licensed chiropractic physician]

A. "accredited chiropractic institution" means a chiropractic institution accredited by the council on chiropractic education, or the equivalent, and recognized by the commission on recognition of post-secondary accreditation and the United States secretary of education;

B. "board" means the chiropractic board;

C. "chiropractic" or "chiropractic medicine" means the science, art and philosophy of things natural, the science of locating and removing interference with the transmissions or expression of nerve forces by the correction of misalignments and subluxations of anatomical articulations and adjacent structures for the purpose of correcting abnormal chemistry, restoring and maintaining health and wellness for treatment of disease, primarily by chiropractic adjustment and manipulation. "Chiropractic" or "chiropractic medicine" includes the use of all natural agencies to assist in the healing act such as food, water, light, air, oxygen, sound, heat, cold, electricity, mechanical appliances, herbs, natural substances, nutraceuticals, nutritional supplements, homeopathic remedies and any necessary diagnostic and treatment procedures as provided by board rules and board-approved training and certification;

D. "chiropractic adjustment" means the application of a precisely controlled force applied by hand or by mechanical device to a specific focal point on the anatomy for the purpose of creating a desired angular movement in skeletal joint structures in order to eliminate or decrease interference with neural transmission and correct or attempt to correct a vertebral subluxation, using, as appropriate, short-lever force, high-velocity force, short-amplitude force or specific line-of-correction force to achieve the desired angular movement, as well as low-force neuromuscular reflex technique procedures;

E. "chiropractic assistant" means a person who practices under the on-premises supervision of a licensed chiropractic physician;

F. "chiropractic physician" means a person who practices chiropractic as defined in the Chiropractic Physician Practice Act and includes doctor of chiropractic and chiropractor;

G. "mobilization" means a non-thrust manual therapy involving movement of a joint within its physiological range of motion. "Mobilization" is passive movement within the physiological joint space administered by a clinician for the purpose of increasing overall range of motion;

H. "spinal manipulation" means the application of a direct thrust or leverage to move a joint of the spine at the end of passive movement but without exceeding the limits of anatomical integrity; and

I. "vertebral subluxation" means a complex of functional, structural or pathological articular changes, or combination thereof, that compromise neural integrity and may influence organ system function and general health."

Section 2. Section 61-4-3 NMSA 1978 (being Laws 1968, Chapter 3, Section 3, as amended) is amended to read:

"61-4-3. BOARD CREATED--APPOINTMENT--OFFICERS--DUTIES--COMPENSATION.--

A. There is created the "chiropractic board". The board shall consist of six persons. Four shall have been continuously engaged in the practice of chiropractic in New Mexico for five years immediately prior to their appointment. Two persons shall represent the public and shall not have practiced chiropractic in this state or any other jurisdiction. No person shall be appointed to the board who is an officer or employee of or who is financially [interested] invested in any institution, school or college of chiropractic, medicine, surgery or osteopathy.

B. Members of the board shall be appointed by the governor for staggered terms. One of the members shall be appointed for a term ending July 1, 1980, one for a term ending July 1, 1981, one for a term ending July 1, 1982, one for a term ending July 1, 1983 and one for a term ending July 1, 1984. Thereafter, appointments shall be made for terms of five years or less and [be made] in such a manner that the term of one board member expires on July 1 of each year. A list of five names for each professional member vacancy shall be submitted by the New Mexico chiropractic [associations] association to the governor for his consideration in the appointment of professional board members. A vacancy shall be filled by appointment for the unexpired term. Board members shall serve until their successors have been appointed and qualified.

C. The board shall annually elect a chairman and a secretary-treasurer. A majority of the board constitutes a quorum. The board shall meet quarterly. Special meetings may be called by the chairman and shall be called upon the written request of two members of the board. Notification of special meetings shall be made by certified mail unless such notice is waived by the entire board and the action noted in the minutes. Notice of all regular meetings shall be made by regular mail at least ten days prior to the meeting, and copies of the minutes of all meetings shall be mailed to each board member within thirty days after any meeting.

D. Any board member failing to attend three consecutive meetings, either regular or special, shall automatically be removed as a member of the board.

E. The board shall adopt a seal.

F. The board shall promulgate and file, in accordance with the State Rules Act, all rules [and regulations] necessary for the implementation and enforcement of the provisions of the Chiropractic Physician Practice Act, including educational requirements for a chiropractic assistant.

G. The board shall cause examinations to be held at least twice a year, and all applicants shall be notified in writing of each examination.

H. The board, for the purpose of protecting the health and well-being of the citizens of this state and maintaining and continuing informed professional knowledge and awareness, shall establish by [regulations] rules adopted in accordance with the provisions of the Uniform Licensing Act mandatory continuing education requirements for [chiropractors] chiropractic physicians licensed in this state.

I. Failure to comply with the rules [and regulations] adopted by the board shall be grounds for investigation, which may lead to revocation of license.

J. Members of the board shall be reimbursed as provided in the Per Diem and Mileage Act, but shall receive no other compensation, perquisite or allowance for each day necessarily spent in the discharge of their duties."

Section 3. Section 61-4-4 NMSA 1978 (being Laws 1968, Chapter 3, Section 4, as amended) is amended to read:

"61-4-4. APPLICATION REQUIREMENTS.--Each applicant for a license to practice chiropractic shall:

A. make application on forms furnished by the board;

B. submit evidence on oath satisfactory to the board that the applicant has reached the age of majority, [has completed a preliminary education equal to the requirements for graduation from high school, is of good moral character and, after January 1, 1976, except for any student presently enrolled in a college of chiropractic] has completed [two years] three years or ninety hours of undergraduate college-level study in an accredited institution of higher learning and is a graduate of a [college of] chiropractic [which] institution that meets the standards of professional education prescribed in Section 61-4-5 NMSA 1978; and

C. pay in advance to the board, fees for:

(1) [for] examination; and

(2) [for] issuance of a license."

Section 4. Section 61-4-5 NMSA 1978 (being Laws 1975, Chapter 176, Section 1, as amended) is amended to read:

"61-4-5. EVIDENCE OF GRADUATION--CREDITATION OF

COLLEGE.--In addition to the requirements prescribed in Section 61-4-4 NMSA 1978, all applicants for licensure who have matriculated at a chiropractic [college after October 1, 1975] institution shall present evidence of having graduated from a chiropractic [college] institution having status with the accrediting commission of the council on chiropractic education or the equivalent criterion thereof and recognized by the commission on recognition of post-secondary accreditation and the United States secretary of education."

Section 5. Section 61-4-6 NMSA 1978 (being Laws 1968, Chapter 3, Section 6, as amended) is amended to read:

"61-4-6. EXAMINATION--SUBJECTS--METHOD OF TREATMENT--RECORDING LICENSE.--

A. The board shall recognize successful completion [of all parts] of parts I, II, III and IV and physiotherapy of the national board of chiropractic examiners' examination.

B. The board shall administer a jurisprudence examination and examine each applicant in the act of chiropractic adjusting, procedures and methods as shall reveal the applicant's qualifications to practice chiropractic.

C. The board shall issue a license to all applicants whose applications have been filed with and approved by the board and who have paid the required fees and passed the board-administered examination with a general average of not less than seventy-five percent [with no subject below sixty-five percent]. A license shall be refused to any applicant who fails to make application as provided in this section, fails the examination or fails to pay the required fees.

D. The license, when granted by the board, carries with it the title of doctor of chiropractic and entitles the holder to diagnose and treat using any necessary diagnostic and treatment procedures [excluding invasive procedures, except as provided by the board by rule and regulation, and treat] for the purpose of correcting abnormal chemistry, restoring and maintaining health and wellness, treating injuries, deformities, chemical or other physical or mental conditions relating to the basic concepts of chiropractic by the use of any [or all] methods as provided in this section, including but not limited to physical examinations, palpating, diagnosing, adjusting and treating injuries and defects [of human beings] by the application of chiropractic adjustments and manipulative, manual and mechanical [means] treatment procedures, including all natural agencies imbued with the healing act, such as food, water, light, air, oxygen, sound, heat, cold, electricity, [and] mechanical appliances, herbs, natural substances, nutraceuticals, nutritional supplements and homeopathic remedies [but excluding operative surgery and prescription or use of controlled or dangerous drugs]. The holder may also supervise the use of any [or all] natural agencies imbued with the healing act, such as food, water, light, air, oxygen, sound, heat, cold, electricity, mechanical appliances, herbs, natural substances, nutraceuticals, nutritional supplements and homeopathic remedies administered by a chiropractic assistant.

[E. Failure to display the license shall be grounds for the suspension of the license to practice chiropractic until so displayed and shall subject the licensee to the penalties for practicing without a license.]"

Section 6. Section 61-4-7 NMSA 1978 (being Laws 1968, Chapter 3, Section 7, as amended) is amended to read:

"61-4-7. DISPOSITION OF FUNDS--CHIROPRACTIC FUND

CREATED--METHOD OF PAYMENT--BOND.--

A. There is created the "chiropractic fund".

B. All funds received by the board and money collected under the Chiropractic Physician Practice Act shall be deposited with the state treasurer. The state treasurer shall place the money to the credit of the chiropractic fund.

C. Payments out of the chiropractic fund shall be made on vouchers issued and signed by the [secretary] secretary-treasurer of the board upon warrants drawn by the department of finance and administration in accordance with the budget approved by the department of finance and administration.

D. All amounts paid into the chiropractic fund shall be subject to the order of the board and shall only be used for the purpose of meeting necessary expenses incurred in the performance of the purposes of the Chiropractic Physician Practice Act, the duties imposed by that act and the promotion of chiropractic education and standards in this state. All money unused at the end of the fiscal year shall remain in the chiropractic fund for use in accordance with the provisions of the Chiropractic Physician Practice Act to further its purpose.

E. All funds that may have accumulated to the credit of the board under any previous act shall be continued for use by the board in the administration of the Chiropractic Physician Practice Act.

[F. The treasurer of the board shall give bond in the amount of five thousand dollars ($5,000) for the faithful discharge of his duties, in such form as meets the approval of the board. The treasurer shall make, at the first meeting after July 1 of each year, an itemized report of all receipts and disbursements of the board for the prior year.

G.] F. The board shall, by rule, designate a portion of the annual licensing fee for the exclusive purposes of investigating and funding hearings regarding complaints against [doctors of] chiropractic physicians."

Section 7. Section 61-4-8 NMSA 1978 (being Laws 1968, Chapter 3, Section 8) is amended to read:

"61-4-8. LICENSE [WITHOUT EXAMINATION] BY ENDORSEMENT.--[The board may, in its discretion, issue a license without examination to a chiropractor who has been licensed in any state, territory or foreign jurisdiction and who is a graduate of a standard college of chiropractic if:

A. the applicant is of good moral character;

B. the requirements of practice in the state, territory or province in which the applicant is licensed are equal to those of this state; and

C. the applicant pays the fee designated in Section 4.

The board may also, in its discretion, issue a license without examination to any chiropractor who has continuously practiced in another state for at least seven of the last ten years prior to application or to any chiropractor who is a graduate of a standard college of chiropractic and has served in the military services of the United States for two years or more within one year prior to application or to any applicant showing evidence of having passed the examination conducted by the national board of chiropractic examiners.]

A. The board may, in its discretion, issue a license by endorsement to a chiropractic physician licensed in another state, territory, province or foreign jurisdiction if the chiropractic physician:

(1) has been practicing for the last five years;

(2) is a graduate of an accredited chiropractic institution or a foreign equivalent;

(3) has passed parts I, II, III and IV and physiotherapy of the national board of chiropractic examiners' examination, or the equivalent as available at the time of the chiropractic physician's date of graduation;

(4) is of good moral character;

(5) appears for a personal interview with the board and passes a jurisprudence examination administered by the board;

(6) pays the fee authorized in Section 61-4-4 NMSA 1978 as required by the board; and

(7) has not incurred a prior suspension or revocation in any state, territory, province or foreign jurisdiction when the suspension or revocation is based on actions that would be sufficient to constitute a suspension or revocation under the Chiropractic Physician Practice Act and rules promulgated pursuant to that act. A certified copy of the record of the suspension or revocation is conclusive evidence thereof.

B. The board may, in its discretion, issue a license by endorsement to a chiropractic physician who has served in the military services of the United States for two years or more and who applies to the board within one year of military service."

Section 8. Section 61-4-9 NMSA 1978 (being Laws 1968, Chapter 3, Section 9, as amended) is amended to read:

"61-4-9. PRIVILEGES AND OBLIGATIONS.--

A. Only a licensed chiropractic physician may render chiropractic care, chiropractic adjustment or spinal manipulation for the purpose of reducing, removing or correcting a vertebral subluxation to a vertebrate.

[A.] B. Licensed chiropractic physicians shall observe all health and hygiene laws and [regulations] rules of the state and its political subdivisions and shall report births and deaths to the proper authorities. Reports rendered by [chiropractors] chiropractic physicians shall be accepted by officers of departments or agencies to which they are made.

[B.] C. It is the purpose of the Chiropractic Physician Practice Act to grant to [chiropractors] chiropractic physicians the right to practice [chiropractic] primary care chiropractic medicine as taught and practiced in [standard colleges of chiropractic] accredited chiropractic institutions and to entitle the holder of a license the right to perform physical examinations, diagnose, palpate and treat injuries, deformities and other physical, chemical or mental conditions relating to the basic concepts of chiropractic by use of any methods provided in the Chiropractic Physician Practice Act [as provided] and in rules, [and regulations] training and certification established and monitored by the board [but excluding operative surgery and prescription or use of controlled or dangerous drugs as provided in rules and regulations established and monitored by the board]."

Section 9. Section 61-4-10 NMSA 1978 (being Laws 1968, Chapter 3, Section 10, as amended) is amended to read:

"61-4-10. REFUSAL, SUSPENSION OR REVOCATION OF LICENSE.--

A. The board may refuse to issue or may suspend or revoke any license in accordance with the procedures as contained in the Uniform Licensing Act upon the grounds that the licensee or applicant:

(1) is convicted of a felony. A copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence of such conviction;

(2) is guilty of fraud or deceit in procuring or attempting to procure a license in the chiropractic profession or in connection with applying for or procuring license renewal;

(3) is guilty of incompetence;

(4) is habitually intemperate or is addicted to the use of habit-forming drugs or is addicted to any vice to such a degree as to render him unfit to practice chiropractic;

(5) is guilty of practicing or attempting to practice under an assumed name or fails to use the title "doctor of chiropractic", "chiropractic physician", "chiropractor" or the initials "D.C." in connection with his practice or advertisements;

(6) is guilty of failing to comply with any of the provisions of the Chiropractic Physician Practice Act or rules [and regulations] promulgated by the board and filed in accordance with the State Rules Act;

(7) is guilty of willfully or negligently practicing beyond the scope of chiropractic practice as defined in the Chiropractic Physician Practice Act;

(8) is guilty of advertising by means of knowingly false statements;

(9) has been declared mentally incompetent by regularly constituted authorities or is manifestly incapacitated to practice chiropractic;

(10) advertises or attempts to attract patronage in any unethical manner prohibited by the rules [and regulations] of the board;

(11) is guilty of obtaining any fee by fraud or misrepresentation;

(12) is guilty of making false or misleading statements regarding his skill or the efficacy or value of treatment or remedy prescribed or administered by him or at his direction;

(13) is guilty of aiding or abetting the practice of chiropractic by a person not licensed by the board;

(14) has incurred a prior suspension or revocation in another state, territory, province or foreign jurisdiction where the suspension or revocation of a license to practice chiropractic was based upon acts by the licensee similar to acts described in this section and by board rules promulgated pursuant to Paragraph (6) of this subsection. A certified copy of the record of suspension or revocation [of the state making such suspension or revocation] is conclusive evidence thereof;

(15) is guilty of making a false, misleading or fraudulent claim; or

(16) is guilty of unprofessional conduct that includes [but is not limited to] the following:

(a) procuring, aiding or abetting a criminal abortion;

(b) representing to a patient that a manifestly incurable condition of sickness, disease or injury can be cured;

(c) willfully or negligently divulging a professional confidence;

(d) conviction of any offense punishable by incarceration in a state penitentiary or federal prison. A copy of the record of conviction, certified by the clerk of the court entering the conviction, is conclusive evidence;

(e) impersonating another person licensed in the practice of chiropractic or permitting or allowing any person to use his license;

(f) gross negligence in the practice of chiropractic;

(g) fee splitting;

(h) conduct likely to deceive, defraud or harm the public;

(i) repeated similar negligent acts;

(j) employing abusive billing practices;

(k) failure to report to the board any adverse action taken against him by: 1) another licensing jurisdiction; 2) any peer review body; 3) any health care entity; 4) any governmental agency; or 5) any court for acts or conduct similar to acts or conduct that would constitute grounds for action as defined in this section;

(l) failure to report to the board surrender of a license or other authorization to practice chiropractic in another state, [or] territory, province or foreign jurisdiction or surrender of membership on any chiropractic hospital or health facility staff or in any chiropractic 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;

(m) failure to furnish the board, its investigators or representatives with information requested by the board;

(n) abandonment of patients;

(o) failure to adequately supervise, as provided by board [regulation] rule, a chiropractic assistant, [or] technician or professional licensee who renders care;

(p) intentionally engaging in sexual contact with a patient other than his spouse during the doctor-patient relationship; [and]

(q) conduct unbecoming a person licensed to practice chiropractic or detrimental to the best interests of the public; and

(r) failure to display a license to

practice chiropractic medicine.

B. The board may at its discretion hire investigators to investigate complaints made to the board regarding chiropractic physicians.

C. Licensees shall bear all costs of disciplinary proceedings unless exonerated."

Section 10. Section 61-4-12 NMSA 1978 (being Laws 1968, Chapter 3, Section 11, as amended) is amended to read:

"61-4-12. PENALTIES.--

A. Each of the following acts constitutes a [misdemeanor] fourth degree felony punishable upon conviction by a fine of not less than [fifty dollars ($50.00) or] one thousand dollars ($1,000) and not more than [one thousand dollars ($1,000)] two thousand dollars ($2,000) or by imprisonment not to exceed [one year] eighteen months, or both:

(1) the practice of chiropractic or an attempt to practice chiropractic without a license;

(2) obtaining or attempting to obtain a license or a practice in [the profession] chiropractic for money or any other thing of value by fraudulent misrepresentation;

(3) willfully falsifying any oath or affirmation required by the Chiropractic Physician Practice Act; or

(4) practicing or attempting to practice under an assumed name [or

(5) advertising or attempting to attract patronage in any unethical manner prohibited by the rules and regulations of the board].

B. [Any second] A subsequent violation [of the act] pursuant to this section constitutes a fourth degree felony punishable by a fine of not less than two thousand five hundred dollars ($2,500) and not more than five thousand dollars ($5,000) or by imprisonment not to exceed eighteen months, or both."

Section 11. Section 61-4-13 NMSA 1978 (being Laws 1968, Chapter 3, Section 12, as amended) is amended to read:

"61-4-13. ANNUAL RENEWAL OF LICENSE--FEE--NOTICE--INACTIVE STATUS.--

A. [Any] A person licensed to practice chiropractic in this state shall, on or before July 1 of each year, pay to the board an annual fee set by [regulation] rule and shall submit proof of completion of continuing education requirements as required by the board. The board shall send written notice to every person holding a license prior to June 1 of each year, directed to the last known address of the licensee, notifying [him] the licensee that it is necessary [for him] to pay the renewal fee as provided in the Chiropractic Physician Practice Act. Proper forms shall accompany the notice, upon which forms the licensee shall make application for the renewal of [his] the license. The licensee is responsible for renewal of the license even if the licensee does not receive the renewal notice.

B. The board shall establish a schedule of reasonable fees for applications, licenses, renewals and placement [or] on inactive status and administrative fees.

C. To place a license on inactive status, a licensee shall follow the procedures provided by the board and shall comply with all applicable rules for maintaining an inactive license."

Section 12. Section 61-4-14 NMSA 1978 (being Laws 1968, Chapter 3, Section 13) is amended to read:

"61-4-14. FAILURE TO RENEW--CANCELLATION--REINSTATEMENT [PERMISSIVE TEMPORARY CANCELLATION].--[Any]

A. A licensee who fails to comply with the requirements for renewal as set forth in Section [12] 61-4-13 NMSA 1978 shall, upon order of the board, forfeit [his] the right to practice chiropractic in this state, and [his] the license and any certificates of renewal shall be [cancelled] canceled.

B. The board may reinstate [him] the license upon payment of all fees or penalties due and upon the presentation of evidence of attendance at continuing educational programs as may be provided by rules [and regulations] of the board. [Any person licensed to practice chiropractic in this state who desires to withdraw from active practice in this state may apply to the board for a temporary suspension of his license with the right to renew and reinstate his license upon a showing that he has paid his annual license renewal fee on or before the first day of July 1 of each year, provided that no suspension shall be granted for a period of less than one year.]"

Section 13. Section 61-4-15 NMSA 1978 (being Laws 1968, Chapter 3, Section 14, as amended) is amended to read:

"61-4-15. EXEMPTIONS.--The Chiropractic Physician Practice Act does not apply to:

A. [any] a commissioned officer of the armed forces of the United States in the discharge of his official duties;

B. a [chiropractor] chiropractic physician who is legally qualified to practice in the state, [or] territory, province or foreign jurisdiction in which he resides, when in actual consultation with a licensed [chiropractor] chiropractic physician of this state; or

C. [any] a bona fide student of [any standard chiropractic college] an accredited chiropractic institution who is chiropractically analyzing and adjusting [the human body] a patient under supervision of a licensed [chiropractor] chiropractic physician."

Section 14. Section 61-4-17 NMSA 1978 (being Laws 1979,

Chapter 77, Section 2, as amended) is amended to read:

"61-4-17. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The chiropractic board is terminated on July 1, [2003] 2010 pursuant to the Sunset Act. The board shall continue to operate according to the provisions of Chapter 61, Article 4 NMSA 1978 until July 1, [2004] 2011. Effective July 1, [2004] 2011, Chapter 61, Article 4 NMSA 1978 is repealed."