45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO DENTAL HEALTH CARE; PROVIDING FOR LICENSURE OF NON-DENTIST OWNERS; ESTABLISHING FEES; PROVIDING PENALTIES; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

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

Section 1. A new section of the Dental Health Care Act, Section 61-5A-13.1 NMSA 1978, is enacted to read:

"61-5A-13.1. [NEW MATERIAL] NON-DENTIST OWNER--EMPLOYING AND CONTRACTING FOR DENTAL SERVICES.--

A. A person that desires to act as a non-dentist owner shall apply to the board for a non-dentist owner license and shall adhere to the licensure requirements and pay the applicable fees as set forth by rule of the board.

B. A person licensed as a non-dentist owner pursuant to this section may:

(1) employ or contract with a dentist to provide services in the practice of dentistry;

(2) employ or contract with a dental hygienist to provide services in the practice of dental hygiene or in the collaborative practice of dental hygiene; or

(3) enter into a managed care or other agreement to provide services in the practice of dentistry or dental hygiene or in the collaborative practice of dental hygiene."

Section 2. Section 61-5A-1 NMSA 1978 (being Laws 1994, Chapter 55, Section 1) is amended to read:

"61-5A-1. SHORT TITLE.--[Sections 1 through 29 of this act] Chapter 61, Article 5A NMSA 1978 may be cited as the "Dental Health Care Act"."

Section 3. Section 61-5A-2 NMSA 1978 (being Laws 1994, Chapter 55, Section 2) is amended to read:

"61-5A-2. PURPOSE.--

A. In the interest of the public health, safety and welfare and to protect the public from the improper, unprofessional, incompetent and unlawful practice of dentistry and dental hygiene, it is necessary to provide laws and regulations controlling the granting and use of the privilege to practice dentistry and dental hygiene and to establish a board of dental health care and a dental hygienists committee to implement and enforce those laws and regulations.

B. The primary duties of the board [of dental health care] are to issue licenses to qualified dentists, to certify qualified dental assistants, to issue licenses to non-dentist owners, to issue licenses to dental hygienists through the dental hygienists committee, to discipline incompetent or unprofessional dentists, dental assistants, non-dentist owners and, through the dental hygienists committee, dental hygienists and to aid in the rehabilitation of impaired dentists and dental hygienists for the purpose of protecting the public."

Section 4. Section 61-5A-3 NMSA 1978 (being Laws 1994, Chapter 55, Section 3) is amended to read:

"61-5A-3. DEFINITIONS.--As used in the Dental Health Care Act:

A. "board" means the New Mexico board of dental health care;

B. "certified dental assistant" means an individual certified by the dental assistant national board;

C. "committee" means the New Mexico dental hygienists committee;

D. "dental assistant certified in expanded functions" means a dental assistant who meets specific qualifications set forth by rule of the board;

E. "dental hygienist" means an individual who has graduated and received a diploma from an accredited dental hygiene educational program, which provides a minimum of two academic years of dental hygiene curriculum and is an institution of higher education accredited by the American dental association commission on dental accreditation, and, except as the context otherwise requires, who holds a license to practice dental hygiene in New Mexico;

F. "dental laboratory" means any place where bridges, crowns, dentures or other prosthetic or orthodontic appliances are fabricated, altered or repaired by one or more persons;

G. "dental technician" means an individual, other than a licensed dentist, who fabricates, alters, repairs or assists in the fabrication, alteration or repair of bridges, crowns, dentures or other prosthetic or orthodontic appliances;

H. "dentist" means an individual who has graduated and received a diploma from a dental college or school of dentistry of a university that is accredited by the American dental association commission on dental accreditation and, except as the context otherwise requires, who holds a license to practice dentistry in New Mexico;

I. "general supervision" means the authorization by a dentist of the procedures to be used by a dental hygienist, dental assistant or dental student and the execution of the procedures in accordance with a dentist's diagnosis and treatment plan and in facilities as designated by rule of the board; [and]

J. "indirect supervision" means that a dentist is present in the treatment facility while authorized treatments are being performed by a dental hygienist, dental assistant or dental student; and

K. "non-dentist owner" means a person, not licensed in the practice of dentistry, that employs or contracts with a dentist to provide services in the practice of dentistry or with a dental hygienist to provide services in the practice of dental hygiene or the collaborative practice of dental hygiene."

Section 5. Section 61-5A-5 NMSA 1978 (being Laws 1994, Chapter 55, Section 5) is amended to read:

"61-5A-5. LICENSE REQUIRED--EXEMPTIONS.--

A. Unless licensed to practice as a dentist under the Dental Health Care Act, no person shall:

(1) practice dentistry;

(2) use the title "dentist", "dental surgeon", "oral surgeon" or any other title, abbreviation, letters, figures, signs or devices that indicate the person is a licensed dentist; or

(3) perform any of the acts enumerated under the definition of the practice of dentistry as defined in the Dental Health Care Act.

B. The following, under the stipulations described, may practice dentistry or an area of dentistry without a New Mexico dental license:

(1) regularly licensed physicians or surgeons are not prohibited from extracting teeth or treating any disease coming within the province of the practice of medicine;

(2) New Mexico licensed dental hygienists may provide those services within their scope of practice that are also within the scope of the practice of dentistry;

(3) any dental student duly enrolled in an accredited school of dentistry recognized by the board, while engaged in educational programs offered by the school in private offices, public clinics or educational institutions within the state of New Mexico under the indirect supervision of a licensed dentist;

(4) any dental hygiene student duly enrolled in an accredited school of dental hygiene engaged in procedures outside the scope of dental hygiene that are part of the curriculum of that program under the indirect supervision of a licensed dentist faculty member of the accredited program and in the school setting;

(5) unlicensed persons performing for a licensed dentist merely mechanical work upon inert matter in the construction, making, alteration or repairing of any artificial dental substitute, dental restorative or corrective appliance, when the casts or impressions for the work have been furnished by a licensed dentist and where the work is prescribed by a dentist pursuant to a written authorization by that dentist; and

(6) commissioned dental officers of the uniformed forces of the United States and dentists providing services to the United States public health service, the veterans' administration of the United States or within federally controlled facilities in the discharge of their official duties provided that such persons who hold dental licenses in New Mexico shall be subject to the provisions of the Dental Health Care Act.

C. Unless licensed to practice as a dental hygienist under the Dental Health Care Act, no person shall:

(1) practice as a dental hygienist;

(2) use the title "dental hygienist" or abbreviation "R.D.H." or any other title, abbreviation, letters, figures, signs or devices that indicate the person is a licensed dental hygienist; or

(3) perform any of the acts enumerated under the definition of [the practice of] dental hygiene as defined in the Dental Health Care Act.

D. The following, under the stipulations described, may practice dental hygiene or the area of dental hygiene outlined without a New Mexico dental hygienist license:

(1) students enrolled in an accredited dental hygiene program engaged in procedures that are part of the curriculum of that program and under the indirect supervision of a licensed faculty member of the accredited program; and

(2) dental assistants working under general supervision who:

(a) expose dental radiographs after being certified in expanded functions by the board;

(b) perform rubber cup coronal polishing, which is not represented as a prophylaxis, having satisfied the educational requirements as established by rules of the board;

(c) apply fluorides as established by rules of the board; and

(d) perform those other dental hygienist functions as recommended to the board by the committee and set forth by rule of the board.

E. Except as provided in Subsection F of this section, unless licensed as a dentist or non-dentist owner, a person shall not:

(1) employ or contract with a dentist to provide services in the practice of dentistry;

(2) employ or contract with a dental hygienist to provide services in the practice of dental hygiene or the collaborative practice of dental hygiene; or (3) enter into a managed care or other agreement to provide services in the practice of dentistry or dental hygiene or the collaborative practice of dental hygiene.

F. The following persons, under stipulations described, are exempt and shall not be required to obtain a non-dentist owner license:

(1) a government agency providing dental services within a federally controlled facility;

(2) a government agency engaged solely in providing public health measures to prevent dental disease;

(3) the spouse of a deceased licensed dentist; provided the spouse shall not operate as a non-dentist owner without a license for longer than a period of one year following the death of the licensee;

(4) an accredited school of dentistry, dental hygiene or dental assisting; provided that the dental services provided by the school are in an education setting only; or

(5) a dental hygienist that employs or contracts with another dental hygienist to provide services in the practice of dental hygiene or the collaborative practice of dental hygiene."

Section 6. Section 61-5A-10 NMSA 1978 (being Laws 1994, Chapter 55, Section 10) is amended to read:

"61-5A-10. POWERS AND DUTIES OF THE BOARD AND COMMITTEE.--In addition to any other authority provided by law, the board or the committee shall have the power to:

A. enforce and administer the provisions of the Dental Health Care Act;

B. adopt, publish, [and] file and revise, in accordance with the Uniform Licensing Act and the State Rules Act, all rules and regulations as may be necessary to:

(1) regulate the examination and licensure of dentists and, through the committee, regulate the examination and licensure of dental hygienists;

(2) regulate and license non-dentist owners;

[(2)] (3) provide for the examination and certification of dental assistants by the board;

[(3)] (4) provide for the regulation of dental technicians by the board; and

[(4)] (5) regulate the practice of dentistry, dental assisting and, through the committee, regulate the practice of dental hygiene;

C. adopt and use a seal;

D. administer oaths to all applicants, witnesses and others appearing before the board or the committee, as appropriate;

E. keep an accurate record of all meetings, receipts and disbursements;

F. grant, deny, review, suspend and revoke licenses and certificates to practice dentistry, dental assisting and, through the committee, dental hygiene and censure, reprimand, fine and place on probation and stipulation dentists, dental assistants and, through the committee, dental hygienists, in accordance with the Uniform Licensing Act for any cause stated in the Dental Health Care Act;

G. grant, deny, review, suspend and revoke licenses of non-dentist owners;

[G.] H. maintain records in which the name, address and license number of all licensees shall be recorded, together with a record of all license renewals, suspensions, revocations, probations, stipulations, censures, reprimands and fines;

[H.] I. hire staff and administrators as necessary to carry out the provisions of the Dental Health Care Act;

[I.] J. establish ad hoc committees whose members shall be appointed by the chairman with the advice and consent of the board or committee, as it deems necessary for carrying on its business;

[J.] K. have the authority to pay per diem and mileage to individuals who are appointed by the board or the committee to serve on ad hoc committees;

[K.] L. have the authority to hire or contract with investigators to investigate possible violations of the Dental Health Care Act;

[L.] M. have the authority to hire an attorney to give advice and counsel in regard to any matter connected with the duties of the board [and] or the committee, to represent the board or the committee in any legal proceedings and to aid in the enforcement of the laws in relation to the Dental Health Care Act and to fix the compensation to be paid to such attorney; provided, however, such attorney shall be compensated from the funds of the board;

[M.] N. have the authority to issue investigative subpoenas prior to the issuance of a notice of contemplated action for the purpose of investigating complaints against dentists, dental assistants and, through the committee, dental hygienists licensed under the Dental Health Care Act; and

[N.] O. establish continuing education or continued competency requirements for dentists, certified dental assistants in expanded functions, dental technicians and, through the committee, dental hygienists."

Section 7. Section 61-5A-16 NMSA 1978 (being Laws 1994, Chapter 55, Section 16) is amended to read:

"61-5A-16. [LICENSES] LICENSE AND CERTIFICATE RENEWALS.--

A. Except as provided in Subsection I of this section, all licensees shall be required to renew their licenses triennially as established in rules and regulations of the board or committee.

B. All dental assistants certified in expanded functions shall be required to renew their certificates triennially as established in rules and regulations of the board or committee.

C. The board or committee may establish a method to provide for staggered triennial terms and may prorate triennial renewal fees and impaired dentist and dental hygienist fees until staggered triennial renewal is established. The fact that a practitioner has not received a renewal form from the board or committee shall not relieve the practitioner of the duty to renew the license or certificate nor shall such omission on the part of the board or committee operate to exempt the practitioner from the penalties for failure to renew the practitioner's license or certificate.

D. All licensed practitioners shall pay a triennial renewal fee and an impaired dentist and dental hygienist fee, and all practitioners shall return a completed renewal application form that includes proof of continuing education or continued competency.

E. Each application for triennial renewal of license shall state the practitioner's full name, business address, the date and number of the license and all other information requested by the board or committee.

F. Any practitioner who fails to submit an application for triennial renewal on or before July 1 but who submits an application for triennial renewal within thirty days thereafter shall be assessed a late fee.

G. Any practitioner who fails to submit application for triennial renewal between thirty and sixty days of the July 1 deadline may have [their] his license or certificate suspended. If the practitioner renews by that time, the licensee shall be assessed a cumulative late fee.

H. The board or committee may summarily revoke, for nonpayment of fees or failure to comply with continuing education or continued competency requirements, the license or certificate of any practitioner who has failed to renew his license or certificate on or before August 31.

I. A license for a non-dentist owner shall be renewed annually as established by rule of the board. An application for renewal of a non-dentist owner license shall state the name, business address, date and number of the license and all other information as required by rule of the board. If a non-owner dentist fails to submit the application for renewal of the license by July 1, the board may assess a late fee. If the non-dentist owner fails to submit the application for a renewal license within sixty days of the July 1 renewal deadline, the board may suspend the license. The license of a non-dentist owner may be summarily revoked by the board for nonpayment of fees."

Section 8. Section 61-5A-18 NMSA 1978 (being Laws 1994, Chapter 55, Section 18) is amended to read:

"61-5A-18. PRACTICING WITHOUT A LICENSE--PENALTY.--

A. Any person who practices dentistry or who attempts to practice dentistry without first complying with the provisions of the Dental Health Care Act and without being the holder of a license entitling the practitioner to practice dentistry in New Mexico is guilty of a fourth degree felony and upon conviction shall be sentenced [under the] pursuant to provisions of the Criminal Sentencing Act to imprisonment for a definite period not to exceed eighteen months and, in the discretion of the sentencing court, to a fine not to exceed five thousand dollars ($5,000), or both. Each occurrence of practicing dentistry or attempting to practice dentistry without complying with the Dental Health Care Act shall be a separate violation.

B. Any person who practices as a dental hygienist or who attempts to practice as a dental hygienist without first complying with the provisions of the Dental Health Care Act and without being the holder of a license entitling the practitioner to practice as a dental hygienist in New Mexico is guilty of a [misdemeanor] fourth degree felony and upon conviction shall be sentenced [under the] in accordance with the provisions of [the Criminal Sentencing Act to imprisonment for a definite period not to exceed one year and, in the discretion of the sentencing court, to a fine not to exceed one thousand dollars ($1,000), or both] Section 31-18-15 NMSA 1978. Each occurrence of practicing as a dental hygienist or attempting to practice as a dental hygienist without complying with the Dental Health Care Act shall be a separate violation.

C. A person acting or attempting to act as a non-dentist owner or an officer of a corporate entity that acts or attempts to act as a non-dentist owner, that is not licensed as a non-dentist owner, is in violation of the Dental Health Care Act and is guilty of a fourth degree felony and shall be sentenced in accordance with the provisions of Section 31-18-15 NMSA 1978. Each occurrence of a person violating the provisions of the Dental Health Care Act as prescribed in this subsection shall constitute a separate violation.

[C.] D. The attorney general or district attorney shall prosecute all violations of the Dental Health Care Act.

[D.] E. Upon conviction of any person for violation of any provision of the Dental Health Care Act, the convicting court may, in addition to the penalty provided in this section, enjoin [him] the person from any further or continued violations of the Dental Health Care Act and enforce the order of contempt proceedings."

Section 9. Section 61-5A-20 NMSA 1978 (being Laws 1994, Chapter 55, Section 20) is amended to read:

"61-5A-20. FEES.--

A. The board and committee shall establish a schedule of reasonable fees not to exceed the following:

Dentists Dental

Hygienists

[A.] (1) licensure by examination $1,500 $1,000

[B.] (2) licensure by credential $3,000 $1,500

[C.] (3) specialty license by

examination $1,500

[D.] (4) specialty license by

credential $3,000

[E.] (5) temporary license

48 [hour] hours $ 50 $ 50

six months $ 300 $ 200

12 months $ 450 $ 300

[F.] (6) application for

certification in local

anesthesia $ 40

[G.] (7) examination in local

anesthesia $ 150

[H.] (8) triennial license renewal $ 450 $ 300

[I.] (9) late renewal $ 100 $ 100

[J.] (10) reinstatement of license $ 450 $ 300

[K.] (11) administrative fees $ 200 $ 200

[L.] (12) impaired dentist or

dental hygienist $ 150 $ 75

[M.] (13) assistant certificate $ 100.

B. The board shall establish reasonable fees for the licensure of non-dentist owners, not to exceed five hundred dollars ($500) for an initial license and two hundred dollars ($200) for a renewal license."