SB0076

SENATE BILL 76

51st legislature - STATE OF NEW MEXICO - second session, 2014

INTRODUCED BY

Benny Shendo, Jr. and Dennis J. Roch

FOR THE LEGISLATIVE HEALTH AND HUMAN SERVICES COMMITTEE

AN ACT

RELATING TO HEALTH CARE; ENACTING THE DENTAL THERAPIST-HYGIENIST ACT; PROVIDING FOR LICENSURE AND A SCOPE OF PRACTICE FOR DENTAL THERAPIST-HYGIENISTS; PROVIDING FOR THE CREATION OF A JOINT COMMITTEE TO REGULATE, LICENSE AND DISCIPLINE DENTAL THERAPIST-HYGIENISTS; PROVIDING FOR FEES; PROVIDING FOR RULEMAKING; AMENDING SECTIONS OF THE GROSS RECEIPTS AND COMPENSATING TAX ACT, THE NEW MEXICO DRUG, DEVICE AND COSMETIC ACT, THE PUBLIC ASSISTANCE ACT, CHAPTER 59A, ARTICLE 22 NMSA 1978, THE HEALTH MAINTENANCE ORGANIZATION LAW, THE NONPROFIT HEALTH CARE PLAN LAW AND THE DENTAL HEALTH CARE ACT; PROVIDING FOR DELAYED REPEAL AND TERMINATION OF AGENCY LIFE.

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

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 9 of this act may be cited as the "Dental Therapist-Hygienist Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Dental Therapist-Hygienist Act:

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

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

C. "dental therapist-hygienist" means an individual who holds both of the following:

(1) a license to practice dental therapy- hygiene in the state; and

(2) a license to practice dental hygiene pursuant to the Dental Health Care Act;

D. "dental therapist-hygienist advocate" means an individual who publicly supports or recommends the practice of dental therapy-hygiene in the state and who has been nominated by a representative of New Mexico health resources, health action New Mexico, a state or regional dental therapists' association or a state institution of higher education that has a dental therapist-hygienist education program;

E. "dental therapist-hygienist management agreement" means a written general supervision agreement between a dentist and a dental therapist-hygienist;

F. "direct supervision" means the process under which an act is performed when a dentist or dental therapist-hygienist is physically present throughout the performance of the act;

G. "general supervision" means a dentist's authorization of the procedures that are executed by a dental therapist-hygienist while the dentist is not physically present in the facility where the procedures are taking place and in accordance with the dental therapist-hygienist's diagnosis and treatment plan;

H. "indirect supervision" means the process under which an act is performed when a dentist or dental therapist-hygienist is present in the treatment facility throughout the performance of the act;

I. "joint committee" means the committee created pursuant to Section 6 of the Dental Therapist-Hygienist Act to regulate and license the practice of dental therapy-hygiene;

J. "person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or any legal or commercial entity;

K. "store-and-forward technology" means electronic information, imaging and communication, including interactive audio, video and data communications, that is transferred or recorded or otherwise stored for asynchronous use; and

L. "telehealth" means the use of electronic information, imaging and communication technologies, including interactive audio, video and data communications, as well as store-and-forward technologies, to provide and support health care delivery, diagnosis, consultation, treatment, transfer of medical data and education.

SECTION 3. [NEW MATERIAL] DENTAL THERAPY-HYGIENE PRACTICE--SCOPE OF PRACTICE.--

A. "Dental therapy-hygiene practice" means the application of the science of the prevention and treatment of oral disease through education, prevention, assessment, diagnosis and clinical and other therapeutic services under the general supervision of a dentist. "Dental therapy-hygiene practice" includes the practice of dental hygiene, as provided in Subsection B of Section 61-5A-4 NMSA 1978, and:

(1) behavioral management, oral health instruction and disease prevention education, including nutritional counseling and dietary analysis;

(2) diagnosis of dental disease and the formulation of an individualized treatment plan, including caries risk assessment;

(3) preliminary charting of the oral cavity;

(4) prescribing, exposing and interpreting radiographs;

(5) mechanical polishing of teeth and restorations;

(6) application of topical preventive or prophylactic agents, including fluoride varnishes and pit and fissure sealants;

(7) pulp vitality testing;

(8) application of desensitizing medication or resin;

(9) fabrication of athletic mouthguards;

(10) placement of temporary restoration;

(11) tissue conditioning and soft reline;

(12) a traumatic restorative therapy;

(13) dressing changes;

(14) tooth reimplantation and stabilization of reimplanted teeth;

(15) administration of local anesthetic and nitrous oxide;

(16) extractions of primary teeth;

(17) extractions of permanent teeth that have no impactions and no need of sectioning for removal;

(18) emergency palliative treatment of dental pain;

(19) placement and removal of space maintainers;

(20) cavity preparation;

(21) restoration of primary and permanent teeth;

(22) placement of temporary crowns;

(23) preparation and placement of pre-formed crowns;

(24) pulpotomy of primary teeth;

(25) indirect and direct pulp capping on primary and permanent teeth;

(26) suture removal;

(27) brush biopsies;

(28) simple repairs and adjustments to removable prosthetic appliances;

(29) re-cementing of permanent crowns;

(30) prevention of potential orthodontic problems by early identification and appropriate referral;

(31) prevention, identification and management of dental and medical emergencies and maintenance of current basic life-support certification;

(32) prescribing, dispensing and administration of analgesics, anti-inflammatory medications and antibiotics only within the parameters of a dental therapist-

hygienist management agreement; and

(33) other related services as permitted by board rules.

B. A dental therapist-hygienist shall practice under the general supervision of a dentist pursuant to a written supervision agreement between the dentist and the dental therapist-hygienist. The joint committee may establish minimum requirements for dental therapist-hygienist management agreements.

C. General supervision of a dental therapist-

hygienist by a dentist includes communication between the dental therapist-hygienist and dentist by use of telehealth.

D. A dental therapist-hygienist may provide dental therapy-hygiene services in private and public dental and medical offices, public and community medical facilities, federal Indian health service facilities, schools, hospitals and long-term care facilities and other settings as determined by joint committee rules.

E. To practice under the general supervision of a dentist, a dental therapist-hygienist shall enter into a dental therapist-hygienist management agreement with a dentist. The dental therapist-hygienist management agreement shall set forth the scope of practice and conditions under which the dentist will provide general supervision of the dental therapist- hygienist. A dental therapist-hygienist management agreement shall not be subject to board, committee or joint committee approval. The dental therapist-hygienist management agreement shall be:

(1) submitted annually to the joint committee; and

(2) signed and maintained by the dentist and dental therapist-hygienist.

F. A dentist and a dental therapist-hygienist shall notify the board upon the dissolution of their dental therapist-hygienist management agreement.

G. A dental therapist-hygienist may supervise under direct or indirect supervision dental assistants and dental hygienists. The dental therapist-hygienist management agreement shall set forth the scope of practice and conditions under which the dental therapist-hygienist may supervise dental assistants and dental hygienists.

SECTION 4. [NEW MATERIAL] DENTAL THERAPISTS-HYGIENISTS--LICENSURE--UNAUTHORIZED PRACTICE--IMPAIRED LICENSEES--DISCIPLINE--PENALTIES.--

A. To be licensed as a dental therapist-hygienist, an applicant shall have:

(1) passed a written examination covering the laws and rules for practice in the state; and

(2) submitted proof to the joint committee for its approval and recommendation:

(a) of graduation and receipt of a degree from one of the following education programs developed in partnership with an accredited institution of higher education: 1) a dental therapy-hygiene education program that provides a competency-based curriculum; or 2) both a dental hygiene education program that has met the requirements for a dental hygiene education program pursuant to the Dental Health Care Act and a dental therapy education program that provides a competency-based dental therapy curriculum;

(b) that the applicant: 1) has received a letter of recommendation from a person in the community or from the sponsoring entity in which the applicant plans to practice as part of the application process for the dental therapy-hygiene education program; and 2) maintains an ongoing relationship with the sponsoring entity, including one community prevention project in the supporting community during coursework;

(c) of passage of a competency-based examination given by a nationally recognized regional testing agency if available or, if not available, by an institution of higher education with a dental therapy-hygiene education program that the applicant has passed following the applicant's completion of a dental therapy-hygiene educational program; and

(d) after graduation from a dental therapist-hygiene competency-based education program, has completed a minimum of four hundred additional clinical hours under the indirect supervision of a dentist.

B. Upon notification from the dental therapy-

hygiene education program that the dental therapist-hygienist applicant has graduated from the education program and passed the competency-based examination, the joint committee shall issue a permit for the applicant to practice during the applicant's requirement to complete four hundred additional clinical hours pursuant to Subparagraph (d) of Paragraph (2) of Subsection A of this section.

C. The joint committee shall issue a license to practice as a dental therapist-hygienist without a practical or clinical examination to an applicant who is a licensed dental therapist-hygienist by examination under the laws of another state or territory of the United States; provided that the license is in good standing for the two previous years in that jurisdiction and that the applicant meets the requirements of the Dental Therapist-Hygienist Act, including payment of appropriate fees and the passing of an examination covering the laws and rules of dental therapy-hygiene practice in the state.

D. After an applicant has met the qualifications set forth in Subsections A through C of this section, the joint committee shall issue the applicant a license to practice as a dental therapist-hygienist.

E. A dental therapist-hygienist shall renew the dental therapist-hygienist's license triennially in accordance with joint committee rules.

F. A person who practices as a dental therapist- hygienist or who attempts to practice as a dental therapist- hygienist in violation of the provisions of the Dental Therapist-Hygienist Act or without a license entitling the person to practice as a dental therapist-hygienist in the state is guilty of a misdemeanor and upon conviction shall be sentenced to imprisonment for a definite period of less than one year and, in the discretion of the sentencing court, to a fine not to exceed one thousand dollars ($1,000), or both. Each occurrence of practicing as a dental therapist-hygienist or attempting to practice as a dental therapist-hygienist without complying with the Dental Therapist-Hygienist Act shall be a separate violation.

G. In accordance with the Uniform Licensing Act and rules of the joint committee, the joint committee may fine and may deny, revoke, suspend, stipulate or otherwise limit any license or certificate, including those of licensed non-dentist owners, held or applied for under the Dental Therapist-Hygienist Act, upon findings by the joint committee that the licensee or applicant:

(1) is guilty of fraud or deceit in procuring or attempting to procure a license;

(2) has been convicted of a crime punishable by incarceration in a federal prison or state penitentiary; provided 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;

(3) is guilty of gross incompetence or gross negligence, as defined by rules of the joint committee, in the practice of dental therapy-hygiene;

(4) is habitually intemperate or is addicted to the use of habit-forming drugs or is addicted to any vice to such degree as to render the licensee unfit to practice dental therapy-hygiene;

(5) is guilty of unprofessional conduct as defined by rule of the joint committee;

(6) is guilty of any violation of the Controlled Substances Act;

(7) has violated any provisions of the Dental Therapy-Hygiene Act or rule or regulation of the board or the joint committee;

(8) is guilty of willfully or negligently practicing beyond the scope of licensure;

(9) is guilty of practicing dental therapy-hygiene without a license or aiding or abetting the practice of dental hygiene-therapy by a person not licensed under the Dental Therapy-Hygiene Act;

(10) is guilty of obtaining or attempting to obtain any fee by fraud or misrepresentation or has otherwise acted in a manner or by conduct likely to deceive, defraud or harm the public;

(11) is guilty of patient abandonment;

(12) is guilty of failing to report to the joint committee any adverse action taken against the licensee by a licensing authority, peer review body, malpractice insurance carrier or other entity as defined in rules of the joint committee;

(13) has had a license to practice as a dental therapist-hygienist revoked, suspended, denied, stipulated or otherwise limited in any jurisdiction, territory or possession of the United States or another country for actions of the licensee similar to acts described in this subsection. A certified copy of the decision of the jurisdiction taking such disciplinary action will be conclusive evidence; or

(14) has failed to furnish the joint committee, investigators or its representatives with information requested by the joint committee in the course of an official investigation.

H. Disciplinary proceedings may be instituted by sworn complaint by any person, including a board or joint committee member, and shall conform with the provisions of the Uniform Licensing Act.

I. A licensee shall bear the costs of disciplinary proceedings unless exonerated.

J. Any person filing a sworn complaint shall be immune from liability arising out of civil action if the complaint is filed in good faith and without actual malice.

K. The joint committee may establish reasonable fees related to the maintenance of a license in probationary status, including laboratory costs when laboratory testing of biological fluids or accounting costs when audits are included as a condition of probation.

L. The joint committee shall reinstate the license of a dental therapist-hygienist as follows:

(1) unless otherwise stated in the order of revocation, the joint committee shall not accept a motion for reinstatement of a revoked license until at least three years from the effective date of the revocation;

(2) if the joint committee denies a motion for reinstatement, it shall not consider any further motions for reinstatement for a period of one year;

(3) at the expiration of the period specified in the order of suspension, the joint committee shall automatically reinstate a license that has been suspended for a specific period of time. The automatic reinstatement shall apply as of the day after the expiration of the period of suspension unless the administrative prosecutor has filed with the joint committee written objections. If the administrative prosecutor has filed objections in accordance with joint committee procedures, the petition for reinstatement shall be referred to the joint committee for hearing pursuant to Paragraph (5) of this subsection;

(4) indefinite suspension of dental therapist-hygienists shall occur as follows:

(a) a licensee who has been suspended for an indefinite period of time may, at any time after complying with the conditions of reinstatement, file a petition for reinstatement with the joint committee;

(b) the petition shall be referred to the joint committee for hearing under Paragraph (5) of this subsection; and

(c) if the motion for reinstatement is denied, no further motions for reinstatement will be considered for a period of one year; and

(5) procedures for reinstatement hearings are as follows:

(a) applications for reinstatement shall be referred to the joint committee for hearing if the applicant meets the criteria set forth in this subsection;

(b) the joint committee shall schedule a hearing as soon as practical. At the hearing, the applicant for reinstatement shall have the burden of demonstrating that the applicant has met the following criteria established by joint committee rules: 1) the applicant meets the moral qualifications for reinstatement; 2) the applicant is once again fit to resume the practice of dental therapy-hygiene; and 3) the resumption of the applicant's practice of dental therapy-hygiene will not be detrimental to the public interest; (c) the joint committee shall file its findings of fact, conclusions of law and decision within ninety days of the hearing; and

(d) the joint committee's decision to refuse to reinstate a license shall not be reviewable except for an abuse of discretion.

SECTION 5. [NEW MATERIAL] TEMPORARY LICENSURE.--

A. The joint committee may issue a temporary license to practice dental therapy-hygiene to an applicant who is licensed to practice dental therapy-hygiene in another state or territory of the United States and who is otherwise qualified to practice dental therapy-hygiene in the state. The following provisions shall apply to temporary licensure:

(1) the applicant shall hold a valid license in good standing in another state or territory of the United States;

(2) the applicant shall practice dental therapy-hygiene under the sponsorship of or in association with a licensed New Mexico dentist, dental therapist-hygienist or dental hygienist;

(3) the temporary license may be issued for those activities as stipulated by the joint committee in the rules of the board. It may be issued upon written application of the applicant when accompanied by such proof of qualifications as the secretary-treasurer of the joint committee, in the secretary-treasurer's discretion, may require. Temporary licensees shall engage in only those activities specified on the temporary license for the time designated, and the temporary license shall identify the licensed New Mexico dentist, dental therapist-hygienist or dental hygienist who will sponsor or associate with the applicant during the time the applicant practices dental therapy-hygiene in New Mexico;

(4) the sponsoring or associating dentist, dental therapist-hygienist or dental hygienist shall submit an affidavit attesting to the qualifications of the applicant and the activities the applicant will perform;

(5) the temporary license shall be issued for a period not to exceed twelve months and may be renewed upon application and payment of required fees;

(6) the application for a temporary license under this section shall be accompanied by a license fee; and

(7) the temporary licensee shall be required to comply with the Dental Therapist-Hygienist Act and all rules promulgated pursuant thereto.

B. The joint committee may grant to a dental therapist-hygienist who meets the requirements of Subsection A of this section and who is licensed to practice dental therapy-hygiene in another state or territory of the United States temporary licensure to practice and serve as faculty for a dental therapy-hygiene education program in a state institution, a program approved or maintained by the department of health or a program or clinic that the department of health designates as serving a health care underserved area.

SECTION 6. [NEW MATERIAL] JOINT COMMITTEE--CREATION--MEMBERSHIP.--

A. The joint committee shall regulate, license and discipline dental therapist-hygienists.

B. The joint committee is made up of thirteen members, including:

(1) five members of the board who are dentists;

(2) five members who are members of the New Mexico dental hygienists committee who are dental hygienists;

(3) one dental therapist-hygienist or dental therapist-hygienist advocate; and

(4) two public members of the board.

C. Within thirty days of the effective date of the Dental Therapist-Hygienist Act, the governor shall appoint the dental therapist-hygienist or dental therapist-hygienist advocate member of the joint committee from a list of names submitted by New Mexico health resources, health action New Mexico, a state or regional dental therapists' association or a state institution of higher education that has a dental therapy-hygiene education program.

D. Appointment of the dental therapist-hygienist or dental therapist-hygienist advocate member shall be for a term of five years.

E. The dental therapist-hygienist or dental therapist-hygienist advocate member of the joint committee shall be chosen from those members of the board who are also members of the committee.

F. To achieve a quorum at a meeting of the joint committee, the dental therapist-hygienist or dental therapist-hygienist advocate member of the joint committee shall be in attendance.

G. In accordance with the Uniform Licensing Act, for any cause stated in the Dental Therapist-Hygienist Act, the joint committee may grant, deny, review, censure, reprimand, fine and place on probation and stipulation, suspend and revoke licenses to practice dental therapy-hygiene.

H. Within six months of the appointment of the dental therapist-hygienist or dental therapist-hygienist advocate members, the joint committee shall adopt and promulgate rules relating to the practice of dental therapy-hygiene.

SECTION 7. [NEW MATERIAL] CONTENT OF LICENSES.--

A. A dental therapist-hygienist license shall bear:

(1) a serial number;

(2) the full name of the licensee;

(3) the date of issue;

(4) the seal of the board;

(5) the signatures of a majority of the members of the joint committee; and

(6) the attestation of the board president and secretary.

B. A dental therapist-hygienist license shall be displayed in a conspicuous manner in the facility where the holder practices. Upon request, the license shall be exhibited to a member of the board, the joint committee or the authorized agent of the board or joint committee.

SECTION 8. [NEW MATERIAL] FEES.--The joint committee shall establish a schedule of reasonable fees for dental therapist-hygienists, not to exceed the following:

A. licensure by examination $1,000

B. licensure by credential $1,500

C. temporary license:

(1) forty-eight hours $ 50

(2) six months $ 200

(3) twelve months $ 300

D. triennial license renewal $ 450

E. late renewal $ 100

F. reinstatement of license $ 300

G. administrative fees $ 300

H. impaired dental therapist-hygienist $ 75

I. application for inactive status $ 50

J. triennial renewal of inactive license $ 90.

SECTION 9. [NEW MATERIAL] TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The joint committee is terminated on January 1, 2023 pursuant to the provisions of the Sunset Act. The joint committee shall continue to operate according to the provisions of the Dental Therapist-Hygienist Act until January 1, 2024. Effective January 1, 2024, the Dental Therapist-Hygienist Act is repealed.

SECTION 10. Section 7-9-93 NMSA 1978 (being Laws 2004, Chapter 116, Section 6, as amended) is amended to read:

"7-9-93. DEDUCTION--GROSS RECEIPTS--CERTAIN RECEIPTS FOR SERVICES PROVIDED BY HEALTH CARE PRACTITIONER.--

A. Receipts from payments by a managed health care provider or health care insurer for commercial contract services or medicare part C services provided by a health care practitioner that are not otherwise deductible pursuant to another provision of the Gross Receipts and Compensating Tax Act may be deducted from gross receipts, provided that the services are within the scope of practice of the person providing the service. Receipts from fee-for-service payments by a health care insurer may not be deducted from gross receipts. The deduction provided by this section shall be separately stated by the taxpayer.

B. For the purposes of this section:

(1) "commercial contract services" means health care services performed by a health care practitioner pursuant to a contract with a managed health care provider or health care insurer other than those health care services provided for medicare patients pursuant to Title 18 of the federal Social Security Act or for medicaid patients pursuant to Title 19 or Title 21 of the federal Social Security Act;

(2) "health care insurer" means a person that:

(a) has a valid certificate of authority in good standing pursuant to the New Mexico Insurance Code to act as an insurer, health maintenance organization or nonprofit health care plan or prepaid dental plan; and

(b) contracts to reimburse licensed health care practitioners for providing basic health services to enrollees at negotiated fee rates;

(3) "health care practitioner" means:

(a) a chiropractic physician licensed pursuant to the provisions of the Chiropractic Physician Practice Act;

(b) a dentist or dental hygienist licensed pursuant to the Dental Health Care Act;

(c) a doctor of oriental medicine licensed pursuant to the provisions of the Acupuncture and Oriental Medicine Practice Act;

(d) an optometrist licensed pursuant to the provisions of the Optometry Act;

(e) an osteopathic physician licensed pursuant to the provisions of Chapter 61, Article 10 NMSA 1978 or an osteopathic physician's assistant licensed pursuant to the provisions of the Osteopathic Physicians' Assistants Act;

(f) a physical therapist licensed pursuant to the provisions of the Physical Therapy Act;

(g) a physician or physician assistant licensed pursuant to the provisions of Chapter 61, Article 6 NMSA 1978;

(h) a podiatrist licensed pursuant to the provisions of the Podiatry Act;

(i) a psychologist licensed pursuant to the provisions of the Professional Psychologist Act;

(j) a registered lay midwife registered by the department of health;

(k) a registered nurse or licensed practical nurse licensed pursuant to the provisions of the Nursing Practice Act;

(l) a registered occupational therapist licensed pursuant to the provisions of the Occupational Therapy Act;

(m) a respiratory care practitioner licensed pursuant to the provisions of the Respiratory Care Act;

(n) a speech-language pathologist or audiologist licensed pursuant to the Speech-Language Pathology, Audiology and Hearing Aid Dispensing Practices Act;

(o) a professional clinical mental health counselor, marriage and family therapist or professional art therapist licensed pursuant to the provisions of the Counseling and Therapy Practice Act who has obtained a master's degree or a doctorate;

(p) an independent social worker licensed pursuant to the provisions of the Social Work Practice Act; [and]

(q) a clinical laboratory that is accredited pursuant to 42 U.S.C. Section 263a but that is not a laboratory in a physician's office or in a hospital defined pursuant to 42 U.S.C. Section 1395x; and

(r) a dental therapist-hygienist licensed pursuant to the Dental Therapist-Hygienist Act;

(4) "managed health care provider" means a person that provides for the delivery of comprehensive basic health care services and medically necessary services to individuals enrolled in a plan through its own employed health care providers or by contracting with selected or participating health care providers. "Managed health care provider" includes only those persons that provide comprehensive basic health care services to enrollees on a contract basis, including the following:

(a) health maintenance organizations;

(b) preferred provider organizations;

(d) competitive medical plans;

(e) exclusive provider organizations;

(f) integrated delivery systems;

(g) independent physician-provider organizations;

(h) physician hospital-provider organizations; and

(i) managed care services organizations; and

(5) "medicare part C services" means services performed pursuant to a contract with a managed health care provider for medicare patients pursuant to Title 18 of the federal Social Security Act."

SECTION 11. Section 26-1-2 NMSA 1978 (being Laws 1967, Chapter 23, Section 2, as amended) is amended to read:

"26-1-2. DEFINITIONS.--As used in the New Mexico Drug, Device and Cosmetic Act:

A. "board" means the board of pharmacy or its duly authorized agent;

B. "person" includes an individual, partnership, corporation, association, institution or establishment;

C. "biological product" means a virus, therapeutic serum, toxin, antitoxin or analogous product applicable to the prevention, treatment or cure of diseases or injuries of humans and domestic animals, and, as used within the meaning of this definition:

(1) a "virus" is interpreted to be a product containing the minute living cause of an infectious disease and includes filterable viruses, bacteria, rickettsia, fungi and protozoa;

(2) a "therapeutic serum" is a product obtained from blood by removing the clot or clot components and the blood cells;

(3) a "toxin" is a product containing a soluble substance poisonous to laboratory animals or humans in doses of one milliliter or less of the product and, following the injection of nonfatal doses into an animal, having the property of or causing to be produced therein another soluble substance that specifically neutralizes the poisonous substance and that is demonstrable in the serum of the animal thus immunized; and

(4) an "antitoxin" is a product containing the soluble substance in serum or other body fluid of an immunized animal that specifically neutralizes the toxin against which the animal is immune;

D. "controlled substance" means a drug, substance or immediate precursor enumerated in Schedules I through V of the Controlled Substances Act;

E. "drug" means articles:

(1) recognized in an official compendium;

(2) intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in humans or other animals and includes the domestic animal biological products regulated under the federal Virus-Serum-Toxin Act,

37 Stat 832-833, 21 U.S.C. 151-158, and the biological products applicable to humans regulated under Federal 58 Stat 690, as amended, 42 U.S.C. 216, Section 351, 58 Stat 702, as amended, and 42 U.S.C. 262;

(3) other than food, that affect the structure or any function of the human body or the bodies of other animals; and

(4) intended for use as a component of Paragraph (1), (2) or (3) of this subsection, but "drug" does not include devices or their component parts or accessories;

F. "dangerous drug" means a drug, other than a controlled substance enumerated in Schedule I of the Controlled Substances Act, that because of a potentiality for harmful effect or the method of its use or the collateral measures necessary to its use is not safe except under the supervision of a practitioner licensed by law to direct the use of such drug and hence for which adequate directions for use cannot be prepared. "Adequate directions for use" means directions under which the layperson can use a drug or device safely and for the purposes for which it is intended. A drug shall be dispensed only upon the prescription or drug order of a practitioner licensed by law to administer or prescribe the drug if it:

(1) is a habit-forming drug and contains any quantity of a narcotic or hypnotic substance or a chemical derivative of such substance that has been found under the federal act and the board to be habit forming;

(2) because of its toxicity or other potential for harmful effect or the method of its use or the collateral measures necessary to its use is not safe for use except under the supervision of a practitioner licensed by law to administer or prescribe the drug;

(3) is limited by an approved application by Section 505 of the federal act to the use under the professional supervision of a practitioner licensed by law to administer or prescribe the drug;

(4) bears the legend: "Caution: federal law prohibits dispensing without prescription.";

(5) bears the legend: "Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian."; or

(6) bears the legend "RX only";

G. "counterfeit drug" means a drug that is deliberately and fraudulently mislabeled with respect to its identity, ingredients or sources. Types of such pharmaceutical counterfeits may include:

(1) "identical copies", which are counterfeits made with the same ingredients, formulas and packaging as the originals but not made by the original manufacturer;

(2) "look-alikes", which are products that feature high-quality packaging and convincing appearances but contain little or no active ingredients and may contain harmful substances;

(3) "rejects", which are drugs that have been rejected by the manufacturer for not meeting quality standards; and

(4) "relabels", which are drugs that have passed their expiration dates or have been distributed by unauthorized foreign sources and may include placebos created for late-phase clinical trials;

H. "device", except when used in Subsection P of this section and in Subsection G of Section 26-1-3, Subsection L and Paragraph (4) of Subsection A of Section 26-1-11 and Subsection C of Section 26-1-24 NMSA 1978, means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent or other similar or related article, including any component, part or accessory, that is:

(1) recognized in an official compendium;

(2) intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease in humans or other animals; or

(3) intended to affect the structure or a function of the human body or the bodies of other animals and that does not achieve any of its principal intended purposes through chemical action within or on the human body or the bodies of other animals and that is not dependent on being metabolized for achievement of any of its principal intended purposes;

I. "prescription" means an order given individually for the person for whom prescribed, either directly from a licensed practitioner or the practitioner's agent to the pharmacist, including by means of electronic transmission, or indirectly by means of a written order signed by the prescriber, and bearing the name and address of the prescriber, the prescriber's license classification, the name and address of the patient, the name and quantity of the drug prescribed, directions for use and the date of issue;

J. "practitioner" means a certified advanced practice chiropractic physician, physician, doctor of oriental medicine, dentist, veterinarian, euthanasia technician, certified nurse practitioner, clinical nurse specialist, pharmacist, pharmacist clinician, certified nurse-midwife, physician assistant, prescribing psychologist, dental therapist-hygienist, dental hygienist or other person licensed or certified to prescribe and administer drugs that are subject to the New Mexico Drug, Device and Cosmetic Act;

K. "cosmetic" means:

(1) articles intended to be rubbed, poured, sprinkled or sprayed on, introduced into or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness or altering the appearance; and

(2) articles intended for use as a component of any articles enumerated in Paragraph (1) of this subsection, except that the term shall not include soap;

L. "official compendium" means the official United States pharmacopoeia national formulary or the official homeopathic pharmacopoeia of the United States or any supplement to either of them;

M. "label" means a display of written, printed or graphic matter upon the immediate container of an article. A requirement made by or under the authority of the New Mexico Drug, Device and Cosmetic Act that any word, statement or other information appear on the label shall not be considered to be complied with unless the word, statement or other information also appears on the outside container or wrapper, if any, of the retail package of the article or is easily legible through the outside container or wrapper;

N. "immediate container" does not include package liners;

O. "labeling" means all labels and other written, printed or graphic matter:

(1) on an article or its containers or wrappers; or

(2) accompanying an article;

P. "misbranded" means a label to an article that is misleading. In determining whether the label is misleading, there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device or any combination of the foregoing, but also the extent to which the label fails to reveal facts material in the light of such representations or material with respect to consequences that may result from the use of the article to which the label relates under the conditions of use prescribed in the label or under such conditions of use as are customary or usual;

Q. "advertisement" means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of drugs, devices or cosmetics;

R. "antiseptic", when used in the labeling or advertisement of an antiseptic, shall be considered to be a representation that it is a germicide, except in the case of a drug purporting to be or represented as an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder or such other use as involves prolonged contact with the body;

S. "new drug" means a drug:

(1) the composition of which is such that the drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and

efficacy of drugs, as safe and effective for use under the conditions prescribed, recommended or suggested in the labeling thereof; or

(2) the composition of which is such that the drug, as a result of investigation to determine its safety and efficacy for use under such conditions, has become so recognized, but that has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions;

T. "contaminated with filth" applies to a drug, device or cosmetic not securely protected from dirt, dust and, as far as may be necessary by all reasonable means, from all foreign or injurious contaminations, or a drug, device or cosmetic found to contain dirt, dust, foreign or injurious contamination or infestation;

U. "selling of drugs, devices or cosmetics" shall be considered to include the manufacture, production, processing, packing, exposure, offer, possession and holding of any such article for sale and the sale and the supplying or applying of any such article in the conduct of a drug or cosmetic establishment;

V. "color additive" means a material that:

(1) is a dye, pigment or other substance made by a process of synthesis or similar artifice or extracted, isolated or otherwise derived, with or without intermediate or final change of identity, from a vegetable, mineral, animal or other source; or

(2) when added or applied to a drug or cosmetic or to the human body or a part thereof, is capable, alone or through reaction with other substances, of imparting color thereto; except that such term does not include any material that has been or hereafter is exempted under the federal act;

W. "federal act" means the Federal Food, Drug and Cosmetic Act;

X. "restricted device" means a device for which the sale, distribution or use is lawful only upon the written or oral authorization of a practitioner licensed by law to administer, prescribe or use the device and for which the federal food and drug administration requires special training or skills of the practitioner to use or prescribe. This definition does not include custom devices defined in the federal act and exempt from performance standards or premarket approval requirements under Section 520(b) of the federal act;

Y. "prescription device" means a device that, because of its potential for harm, the method of its use or the collateral measures necessary to its use, is not safe except under the supervision of a practitioner licensed in this state to direct the use of such device and for which "adequate directions for use" cannot be prepared, but that bears the label: "Caution: federal law restricts this device to sale by or on the order of a __________", the blank to be filled with the word "physician", "physician assistant", "certified advanced practice chiropractic physician", "doctor of oriental medicine", "dentist", "veterinarian", "euthanasia technician", "certified nurse practitioner", "clinical nurse specialist", "pharmacist", "pharmacist clinician", "certified nurse-midwife", "dental therapist-hygienist" or "dental hygienist" or with the descriptive designation of any other practitioner licensed in this state to use or order the use of the device;

Z. "valid practitioner-patient relationship" means a professional relationship, as defined by the practitioner's licensing board, between the practitioner and the patient;

AA. "pedigree" means the recorded history of a drug; and

BB. "drug order" means an order either directly from a licensed practitioner or the practitioner's agent to the pharmacist, including by means of electronic transmission or indirectly by means of a written order signed by the licensed practitioner or the practitioner's agent, and bearing the name and address of the practitioner and the practitioner's license classification and the name and quantity of the drug or device ordered for use at an inpatient or outpatient facility."

SECTION 12. Section 27-2-12 NMSA 1978 (being Laws 1973, Chapter 376, Section 16, as amended) is amended to read:

"27-2-12. MEDICAL ASSISTANCE PROGRAMS.--

A. Consistent with the federal act and subject to the appropriation and availability of federal and state funds, the medical assistance division of the department may by rule provide medical assistance, including the services of licensed doctors of oriental medicine, licensed chiropractic physicians, licensed dental therapist-hygienists and licensed dental hygienists in collaborating practice, to persons eligible for public assistance programs under the federal act.

B. Subject to appropriation and availability of federal, state or other funds received by the state from public or private grants or donations, the medical assistance division of the department may by rule provide medical assistance, including assistance in the payment of premiums for medical or long-term care insurance, to children up to the age of twelve if not part of a sibling group; children up to the age of eighteen if part of a sibling group that includes a child up to the age of twelve; and pregnant women who are residents of the state of New Mexico and who are ineligible for public assistance under the federal act. The department, in implementing the provisions of this subsection, shall:

(1) establish rules that encourage pregnant women to participate in prenatal care; and

(2) not provide a benefit package that exceeds the benefit package provided to state employees."

SECTION 13. Section 59A-22-32 NMSA 1978 (being Laws 1984, Chapter 127, Section 454, as amended) is amended to read:

"59A-22-32. FREEDOM OF CHOICE OF HOSPITAL AND PRACTITIONER.--

A. Within the area and limits of coverage offered an insured and selected by the insured in the application for insurance, the right of a person to exercise full freedom of choice in the selection of a hospital for hospital care or of a practitioner of the healing arts or optometrist, psychologist, podiatrist, physician assistant, certified nurse-midwife, registered lay midwife, dental therapist-hygienist or registered nurse in expanded practice, as defined in Subsection B of this section, for treatment of an illness or injury within that person's scope of practice shall not be restricted under any new policy of health insurance, contract or health care plan issued after June 30, 1967 in this state or in the processing of a claim thereunder. A person insured or claiming benefits under any such health insurance policy, contract or health care plan providing within its coverage for payment of service benefits or indemnity for hospital care or treatment of persons for the cure or correction of any physical or mental condition shall be deemed to have complied with the requirements of the policy, contract or health care plan as to submission of proof of loss upon submitting written proof supported by the certificate of any hospital currently licensed by the department of health or any practitioner of the healing arts or optometrist, psychologist, podiatrist, physician assistant, certified nurse-midwife, registered lay midwife, dental therapist-hygienist or registered nurse in expanded practice.

B. As used in this section:

(1) "hospital care" means hospital service provided through a hospital that is maintained by the state or a political subdivision of the state or a place that is currently licensed as a hospital by the department of health and has accommodations for resident bed patients, a licensed professional registered nurse always on duty or call, a laboratory and an operating room where surgical operations are performed, but "hospital care" does not include a convalescent or nursing or rest home;

(2) "practitioner of the healing arts" means a person holding a license or certificate authorizing the licensee to offer or undertake to diagnose, treat, operate on or prescribe for any human pain, injury, disease, deformity or physical or mental condition pursuant to:

(a) the Chiropractic Physician Practice Act;

(b) the Dental Health Care Act;

(d) Chapter 61, Article 10 NMSA 1978; and

(e) the Acupuncture and Oriental Medicine Practice Act;

(3) "optometrist" means a person holding a license provided for in the Optometry Act;

(4) "podiatrist" means a person holding a license provided for in the Podiatry Act;

(5) "psychologist" means a person who is duly licensed or certified in the state where the service is rendered and has a doctoral degree in psychology and has had at least two years of clinical experience in a recognized health setting or has met the standards of the national register of health service providers in psychology;

(6) "physician assistant" means a person who is licensed by the New Mexico medical board to practice as a physician assistant and who provides services to patients under the supervision and direction of a licensed physician;

(7) "certified nurse-midwife" means a person licensed by the board of nursing as a registered nurse and who is registered with the public health division of the department of health as a certified nurse-midwife;

(8) "registered lay midwife" means a person who practices lay midwifery and is registered as a registered lay midwife by the public health division of the department of health; [and]

(9) "registered nurse in expanded practice" means a person licensed by the board of nursing as a registered nurse approved for expanded practice pursuant to the Nursing Practice Act as a certified nurse practitioner, certified registered nurse anesthetist, certified clinical nurse specialist in psychiatric mental health nursing or clinical nurse specialist in private practice and who has a master's degree or doctorate in a defined clinical nursing [speciality] specialty and is certified by a national nursing organization; and

(10) "dental therapist-hygienist" means an individual licensed to practice dental therapy-hygiene pursuant to the Dental Therapist-Hygienist Act.

C. This section shall apply to any such policy that is delivered or issued for delivery in this state on or after July 1, 1979 and to any existing group policy or plan on its anniversary or renewal date after June 30, 1979 or at expiration of the applicable collective bargaining contract, if any, whichever is later."

SECTION 14. Section 59A-46-35 NMSA 1978 (being Laws 1987, Chapter 335, Section 1, as amended) is amended to read:

"59A-46-35. PROVIDER DISCRIMINATION PROHIBITED.--No class of licensed individual providers willing to meet the terms and conditions offered by a health maintenance organization shall be excluded from a health maintenance organization. For purposes of this section, "providers" means those persons licensed pursuant to:

A. the Optometry Act;

B. Section 61-3-23.2 NMSA 1978;

C. the Chiropractic Physician Practice Act;

D. the Dental Health Care Act;

E. the Medical Practice Act;

F. the Podiatry Act;

G. the Professional Psychologist Act;

H. Chapter 61, Article 10 NMSA 1978; [or]

I. the Pharmacy Act; or

J. the Dental Therapist-Hygienist Act."

SECTION 15. Section 59A-47-28.4 NMSA 1978 (being Laws 2003, Chapter 343, Section 4) is amended to read:

"59A-47-28.4. COVERAGE FOR DENTAL THERAPIST-HYGIENISTS AND COLLABORATIVE PRACTICE DENTAL HYGIENISTS.--An individual or group subscriber contract delivered or issued for delivery in New Mexico that, on a prepaid, service or indemnity basis, provides for treatment of persons for the prevention, cure or correction of any illness or physical or mental condition shall include coverage for the services of a dental therapist-hygienist and of a dental hygienist in a collaborative practice pursuant to the Dental Health Care Act."

SECTION 16. Section 61-5B-10 NMSA 1978 (being Laws 1994, Chapter 55, Section 39) is amended to read:

"61-5B-10. IMPAIRED DENTISTS, DENTAL THERAPIST-HYGIENISTS AND DENTAL HYGIENISTS TREATMENT PROGRAM.--

A. The board has the authority to enter into an agreement with a nonprofit corporation to implement an impaired dentists, dental therapist-hygienists and dental hygienists treatment program.

B. For the purposes of this section:

(1) "dental therapist-hygienist" means an individual licensed to perform dental therapy-hygiene pursuant to the provisions of the Dental Therapist-Hygienist Act; and

(2) "impaired dentists, dental therapist-hygienists and dental hygienists treatment program" means a program of care and rehabilitation services provided by those organizations authorized by the board to provide for the detention, intervention and monitoring of an impaired [dentist or dental hygienist] licensee."

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