HB0600

HOUSE BILL 600

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Gregg Schmedes and Rod Montoya and Rebecca Dow and

David M. Gallegos and Cathrynn N. Brown

AN ACT

RELATING TO ABORTION; CREATING THE WOMEN'S HEALTH AND SAFETY ACT; EXEMPTING CERTAIN PERSONS AND INSTITUTIONS; PROVIDING LICENSING REQUIREMENTS; REQUIRING INFORMED CONSENT AND PARENTAL NOTIFICATION; PROVIDING JUDICIAL PROCESS FOR MINORS SEEKING ABORTION; REQUIRING REPORTING OF ABORTION COMPLICATIONS; PROHIBITING CERTAIN LATE-TERM ABORTIONS; PROVIDING AN EXCEPTION FOR CERTAIN LATE-TERM ABORTIONS; REQUIRING USE OF HOSPITALS FOR MEDICALLY NECESSARY ABORTIONS; PROHIBITING DISCRIMINATION; PROVIDING CIVIL PENALTIES; PROVIDING CRIMINAL PENALTIES.

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

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of this act may be cited as the "Women's Health and Safety Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Women's Health and Safety Act:

A. "abortion" means the intentional termination of the pregnancy of a woman at her request by a person who knows the woman is pregnant;

B. "abortion facility" means a facility other than an accredited hospital, in which five or more first-trimester abortions or any second- or third-trimester abortions are performed;

C. "fetus" means the biological offspring of human parents;

D. "guardian" means a person appointed as a guardian by a court or Indian tribal authority or a person authorized to care for the child by a parental power of attorney as permitted by law, pursuant to Section 32A-1-4 NMSA 1978;

E. "minor" means a person under eighteen years of age;

F. "parent" means a person who has established a parent-child relationship pursuant to Section 40-11A-201 NMSA 1978;

G. "physician" means a licensed physician as defined in the Medical Practice Act or an osteopathic physician pursuant to the Osteopathic Medicine Act;

H. "pregnancy" means the implantation of a developing embryo in the uterus;

I. "similar medical facility" means a facility, doctor's office, ambulatory surgical center or abortion clinic that provides continuous twenty-four-hour monitoring and emergency surgical services and contains diagnostic and emergency equipment and services similar to an inpatient hospital; and

J. "viability" or "viable" means that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb by natural or artificial life-support systems.

SECTION 3. [NEW MATERIAL] PERSONS AND INSTITUTIONS EXEMPT.--

A. A hospital or similar medical facility shall not be required to admit any patient for the purposes of performing an abortion.

B. The following persons shall not be required to participate in medical procedures, including the dispensing of medication, that will result in the termination of the pregnancy if they object to the abortion on moral, religious or personal conviction grounds:

(1) a person who is a member of, or associated with, the staff of a hospital or similar medical facility;

(2) any person under the direction of a physician; or

(3) any employee of a hospital or similar medical facility in which an abortion may be performed.

C. The refusal of any person to participate in an abortion shall not form the basis of any disciplinary or other recriminatory action against the person.

SECTION 4. [NEW MATERIAL] LICENSING REQUIREMENTS.--

A. An abortion shall not be performed unless the abortion is performed by a physician or person under the direction of a physician, licensed by the New Mexico medical board pursuant to the Medical Practice Act and the Osteopathic Medicine Act.

B. A person who knowingly violates this section is guilty of a fourth degree felony.

SECTION 5. [NEW MATERIAL] INFORMED CONSENT AND PARENTAL NOTIFICATION.--

A. No physician or person under the direction of a physician may perform an abortion on a pregnant woman without first obtaining her written informed consent. Informed consent shall at a minimum warn the patient of the following risks associated with abortion:

(1) shock;

(2) uterine perforation;

(3) cervical laceration;

(4) hemorrhage;

(5) aspiration or allergic response;

(6) infection;

(7) sepsis;

(8) death of the patient;

(9) incomplete abortion;

(10) damage to the uterus;

(11) an infant born alive after the abortion; or

(12) emotional distress or psychological harm to the patient, including aggravation of a previously disclosed emotional or psychological condition.

B. Only a physician may provide the information specified in Subsection A of this section and obtain the informed consent of the pregnant woman seeking the abortion. An unlicensed physician or a person acting under the direction of a physician may not provide the information specified in Subsection A of this section and shall not obtain the consent of the pregnant woman seeking the abortion.

C. Any informed consent shall be a fair and accurate description of the risks and should not understate the risks or contain false or misleading representations regarding the possible risks stated in Subsection A of this section.

D. Any informed consent obtained shall not limit the physician's civil liability for emotional, physical, psychological or psychiatric damage due to the abortion procedure or failure to fully disclose the risks of the abortion procedure.

E. If the pregnant individual is a minor and is not emancipated, a physician or a person under the direction of a physician shall not perform an abortion on the minor without:

(1) obtaining the minor's written informed consent pursuant to Subsection A of this section; and

(2) delivery of written notice of the pending abortion according to the following provisions and after a forty-eight-hour waiting period:

(a) the written notice shall be addressed to the parent or guardian of the pregnant minor at the usual place of abode of the parent or guardian and delivered personally to the parent or guardian by the performing physician or person under the direction of a physician; or

(b) notice shall be made by certified mail addressed to the parent or guardian at the usual place of abode of the parent or guardian with return receipt requested, with delivery restricted to the parent or guardian, and delivery shall be deemed to occur at noon on the next day on which regular mail delivery takes place after mailing.

F. No notice shall be required under this section if the physician or person under the direction of a physician certifies that a medical emergency exists and performing an abortion is essential to preserving the life of the minor.

G. A physician or a person under the direction of a physician who knowingly or with reckless disregard performs an abortion in violation of this section is guilty of a misdemeanor, except as otherwise authorized under Subsection F of this section.

H. A person wrongfully denied the right and opportunity to consent to an abortion pursuant to this section may bring a civil action against the physician or person under the direction of the physician responsible for the harm.

I. A physician or person under the direction of a physician shall be immune from liability under this section if the physician or person under the direction of the physician reasonably relied on written representations from the pregnant woman that the pregnant woman consented to an abortion.

J. Any person not authorized to provide consent under this section but who attempts to provide consent is guilty of a misdemeanor. This subsection shall not apply to a minor who fails to comply with the requirements of this section.

K. Any person who coerces a pregnant woman to have an abortion is guilty of a misdemeanor.

SECTION 6. [NEW MATERIAL] JUDICIAL BYPASS STANDARD FOR MINORS.--

A. A minor who is pregnant, unmarried and unemancipated who wishes to have an abortion without notice to a parent or guardian may file a petition in a district court requesting the issuance of an order authorizing the minor to consent to the performance or inducement of an abortion without notice to a parent or guardian.

B. The petition shall be made under oath and include:

(1) a statement that the minor is pregnant;

(2) a statement that the minor is unmarried and unemancipated;

(3) a statement that the minor wishes to have an abortion without notice to a parent or guardian;

(4) an allegation of one or a combination of the following:

(a) that the minor is sufficiently mature and intelligent to decide whether to have an abortion without notice to a parent or guardian;

(b) that a parent or guardian was engaged in physical abuse, sexual abuse or a pattern of emotional abuse against the minor; or

(5) a statement as to whether the minor has retained an attorney and, if an attorney has been retained, the name, address and telephone number of the attorney.

C. The district court shall schedule a hearing after receiving a petition pursuant to this section and shall keep a record of all testimony and documents provided by the minor. The district court shall make every effort to hold a hearing within five business days of the petition being filed, and the minor may request that the district court hold a telephonic hearing on the petition. The district court shall enter judgment on the petition immediately after the hearing ends. If the hearing is not held within five business days of the filing of the petition, the petition shall be deemed granted and the minor shall be considered constructively authorized to consent to the performance or inducement of an abortion without notice to the parent or guardian. The minor shall seek a statement from the clerk of the district court stating that it has been five days since the court received the petition and the district court did not provide a hearing within that time. The minor may use the clerk's statement as a constructive order authorizing the minor to consent to the performance or inducement of an abortion.

D. The district court may appoint an attorney to serve as a guardian ad litem to represent the minor if the minor has not retained an attorney or does not plan to retain an attorney.

E. The minor may request that the district court enter an order directing the minor's school to excuse the minor from school to attend a hearing pursuant to this section or to have an abortion. An order entered pursuant to this subsection shall not notify the minor's parent or guardian that the minor is pregnant, seeking an abortion or absent for purposes of obtaining an abortion.

F. If the minor makes only the allegation set out in Subparagraph (a) of Paragraph (4) of Subsection B of this section and the court finds that there is clear and convincing evidence that the minor is sufficiently mature and intelligent to decide whether to have an abortion, the court shall enter an order authorizing the minor to consent to the performance or inducement of an abortion without notifying the minor's parent or guardian. If the court does not make the finding specified in this subsection, it shall dismiss the petition without prejudice.

G. If the minor makes only the allegation set out in Subparagraph (b) of Paragraph (4) of Subsection B of this section and the court finds that there is clear and convincing evidence of physical abuse, sexual abuse or a pattern of emotional abuse of the minor by one or both of the minor's parents or guardians, the court shall enter an order authorizing the minor to consent to the performance or inducement of an abortion without notifying the minor's parent or guardian. If the court does not make the finding specified in this subsection, it shall dismiss the petition without prejudice.

H. If the minor makes only the allegation set out in Subparagraph (c) of Paragraph (4) of Subsection B of this section and the court finds that there is clear and convincing evidence that notification of a parent or guardian is not in the best interests of the minor, the court shall enter an order authorizing the minor to consent to the performance or inducement of an abortion without notifying the minor's parent or guardian. If the court does not make the finding specified in this subsection, it shall dismiss the petition without prejudice.

I. If the minor makes more than one of the allegations set forth in this section, the court shall proceed as follows:

(1) the court shall first determine whether it can make the finding pursuant to the procedure specified in Subsection F of this section and, if the court can do so, it shall enter an order pursuant to that subsection. If the court cannot enter an order pursuant to Subsection F of this section, it shall follow the procedure set forth in Paragraph (2) of this subsection; or

(2) the court shall determine whether it can make a finding pursuant to the procedures specified in Subsection G or H of this section, and, if the court can do so, it shall enter an order pursuant to either Subsection G or H of this section. If the court cannot enter an order pursuant to Subsection G or H of this section, it shall dismiss the petition without prejudice.

J. The court shall not notify a parent or guardian of the minor that the minor is pregnant or seeks an abortion.

K. The minor shall have a direct appeal to the supreme court of a decision denying the minor's petition, and the appeal shall be expedited. The minor shall file a notice of appeal with the district court clerk and the district court clerk shall deliver a copy of the notice of appeal and record in the district court to the supreme court clerk. The supreme court shall make every effort to hear the appeal within five business days of receiving notice of appeal and the record of the district court. The minor shall be provided an opportunity to present oral argument if the minor chooses, and the supreme court shall endeavor to enter an order on the appeal as soon as possible after oral argument. If the supreme court does not issue a decision within five business days of the filing of the petition, the petition shall be deemed granted and the minor shall be considered constructively authorized to consent to the performance or inducement of an abortion without notice to the parent or guardian.

L. A hearing under this section shall not be open to the public, and the court hearing the petition shall preserve the anonymity of the minor. The petition and any other documents in the record, including those filed in the appeal, shall be kept confidential and are not public records.

M. The supreme court shall prescribe rules regarding the forms to be used pursuant to this section, including rules allowing the minor to provide oral argument before the supreme court. The clerk of the supreme court shall provide the forms free of cost.

N. The court may waive filing fees and costs associated with a petition in the district court or appeal of a denial of the petition for a minor who cannot afford to pay fees or costs.

O. Information on how to appeal a denied petition and the procedure of appeal shall be posted in the district court. The information posted shall state that:

(1) any filing fee for a petition or appeal may be waived by the court;

(2) court costs may not be assessed against the minor in pursuing a court order authorizing the minor to consent to the performance or inducement of an abortion;

(3) an attorney shall be appointed to represent the minor if the minor does not retain an attorney;

(4) the minor may request that the district court hold a telephonic hearing on the petition; and

(5) the minor may request that the district court issue an order directing the minor's school to excuse the minor from school to attend a hearing pursuant to this section or to have an abortion if one is authorized by the court, and an order pursuant to this paragraph shall not notify the minor's parent or guardian that the minor is pregnant, seeking an abortion or absent for purposes of obtaining an abortion."

SECTION 7. [NEW MATERIAL] ABORTION COMPLICATION REPORTING REQUIREMENTS--CIVIL PENALTY.--

A. As used in this section, "abortion complication" means any harmful event or adverse outcome to a patient related to an abortion that is performed on the patient and diagnosed or treated by a physician at an abortion facility or at a health care facility and includes:

(1) shock;

(2) uterine perforation;

(3) cervical laceration;

(4) hemorrhage;

(5) aspiration or allergic response;

(6) infection;

(7) sepsis;

(8) death of the patient;

(9) incomplete abortion;

(10) damage to the uterus; and

(11) an infant born alive after the abortion.

B. The reporting requirements of this section apply to:

(1) a physician who:

(a) performs at an abortion facility an abortion that results in an abortion complication diagnosed or treated by that physician; or

(b) diagnoses or treats at an abortion facility an abortion complication that is the result of an abortion performed by another physician at the facility; or

(2) a health care facility that is a hospital or similar medical facility that provides emergency medical care.

C. A physician described pursuant to Paragraph (1) of Subsection B of this section shall electronically submit a report to the department of health on each abortion complication diagnosed or treated by the physician within three business days of the complication. A health care facility described pursuant to Paragraph (2) of Subsection B of this section shall electronically submit to the department of health a report on each abortion complication diagnosed or treated by the physician within thirty days of the complication.

D. The department of health shall develop a form for reporting abortion complications pursuant to Subsection C of this section. The department of health shall promulgate rules regarding the reporting of abortion complications.

E. A report pursuant to Subsection C of this section shall not identify the patient on whom the abortion was performed or the physician performing the abortion, other than a physician described pursuant to Paragraph (1) of Subsection B of this section.

F. A report under this section shall identify the name of the physician submitting the report or the name and type of health care facility submitting the report and shall include for each abortion complication, if known:

(1) the date of the abortion that caused or may have caused the complication;

(2) the type of abortion that caused or may have caused the complication;

(3) the gestational age of the fetus at the time the abortion was performed;

(4) the name and type of the facility in which the abortion was performed;

(5) the date the complication was diagnosed or treated;

(6) the name and type of any facility other than the reporting facility in which the complication was diagnosed or treated;

(7) a description of the complication;

(8) the patient's year of birth, race, marital status and state and county of residence;

(9) the date of the first day of the patient's last menstrual period that occurred before the date of the abortion that caused or may have caused the complication;

(10) the number of the patient's previous live births; and

(11) the number of previous induced abortions of the patient.

G. All information and records held by the department of health pursuant to this section are confidential and are not public records. That information shall not be released or made public on subpoena or otherwise, except release may be made:

(1) for statistical purposes, but only if a person, patient or health care facility is not identified;

(2) with the consent of each person, patient and facility identified in the information released;

(3) to medical personnel, appropriate state agencies or county and district court to enforce this section; or

(4) to appropriate state licensing boards to enforce state licensing laws.

H. A report submitted pursuant to this section shall include specific, accurate and complete reporting.

I. The department of health shall develop and publish on the its website an annual report that aggregates statewide each abortion complication required to be reported pursuant to Subsection F of this section for the previous calendar year. The annual report shall not include duplicative data.

J. A physician described pursuant to Paragraph (1) of Subsection B of this section or a health care facility that violates this section is subject to a civil penalty of five hundred dollars ($500) for each violation. The attorney general, at the request of the department of health or the appropriate licensing agency, may file an action to recover a civil penalty assessed under this subsection and may recover attorney fees and costs incurred in litigating an action. Each day of a continuing violation constitutes a separate ground of recovery.

K. The third and separate violation of this section shall be punished by revocation or suspension of a physician's or health care facility's license, permit, registration, certificate or other authority or for other disciplinary action against the physician or facility by the appropriate licensing agency.

L. The department of health shall notify the New Mexico medical board or the board of osteopathic medicine of any violations of this section by a physician.

SECTION 8. [NEW MATERIAL] PROHIBITION OF CERTAIN LATE-TERM ABORTIONS--PROVIDING AN EXCEPTION FOR CERTAIN LATE-TERM ABORTIONS.--

A. Late-term abortion consists of knowingly and willfully administering to any pregnant woman any medicine, drug or other substance or using any method or means whereby an untimely termination of the pregnancy is produced or attempted to be produced, with the intent to destroy a viable fetus of twenty or more weeks gestational age.

B. Only a licensed physician may perform an abortion pursuant to this section.

C. For the purposes of this section, there shall be a legal presumption that viability occurs at the twentieth week of pregnancy. Before a physician performs an abortion on a woman that the physician has reason to believe is carrying a fetus of twenty or more weeks gestational age, the physician shall first determine, in a manner consistent with accepted obstetrical and neonatal practices and standards, if the fetus is viable. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight and lung maturity of the fetus and shall enter such findings and determination of viability in the medical record of the woman.

D. If a physician determines that the fetus is twenty or more weeks gestational age and viable, the physician shall not perform or induce a late-term abortion unless the abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself; provided, however, that the physician shall take all reasonable steps to preserve the life and health of the fetus.

SECTION 9. [NEW MATERIAL] HOSPITAL REQUIREMENT OF MEDICALLY NECESSARY ABORTIONS.--If the abortion is necessary or performed pursuant to Section 8 of the Women's Health and Safety Act, the abortion shall take place in a hospital or similar medical facility with access to twenty-four-hour monitoring, emergency treatment and surgical facilities.

SECTION 10. [NEW MATERIAL] NON-DISCRIMINATION.--A woman electing to terminate a pregnancy shall be considered pregnant and shall be provided the same diagnostic testing and prophylactic screening as required by the joint commission given to women electing to carry their fetuses to term.

SECTION 11. [NEW MATERIAL] CIVIL PENALTY.--

A. A physician found to have knowingly and willfully violated, or acted with reckless disregard of, Sections 2 through 10 of the Women's Health and Safety Act is subject to:

(1) liability to the aggrieved individual for damages of five thousand dollars ($5,000) or actual damages resulting from the violation and reasonable attorney fees; or

(2) revocation or suspension of the license to practice medicine for at least one year.

B. The New Mexico medical board and the board of osteopathic medicine shall enforce the provisions of this section with respect to any violation by a physician licensed pursuant to the Medical Practice Act, and the board of osteopathic medicine shall enforce the provisions of this section with respect to any violation by a physician licensed pursuant to the Osteopathic Medicine Act.

C. The damages provided in this section are in addition to other types of relief available under a criminal or civil remedy.

SECTION 12. Section 61-6-15 NMSA 1978 (being Laws 1969, Chapter 46, Section 6, as amended) is amended to read:

"61-6-15. LICENSE MAY BE REFUSED, REVOKED OR SUSPENDED--LICENSEE MAY BE FINED, CENSURED OR REPRIMANDED--PROCEDURE--PRACTICE AFTER SUSPENSION OR REVOCATION--PENALTY--UNPROFESSIONAL AND DISHONORABLE CONDUCT DEFINED--FEES AND EXPENSES.--

A. The board may refuse to license and may revoke or suspend a license that has been issued by the board or a previous board and may fine, censure or reprimand a licensee upon satisfactory proof being made to the board that the applicant for or holder of the license has been guilty of unprofessional or dishonorable conduct. The board may also refuse to license an applicant who is unable to practice medicine, practice as a physician assistant or an anesthesiologist assistant, practice genetic counseling or engage in the practice of polysomnography, pursuant to Section 61-7-3 NMSA 1978. All proceedings shall be as required by the Uniform Licensing Act or the Impaired Health Care Provider Act.

B. The board may, in its discretion and for good cause shown, place the licensee on probation on the terms and conditions it deems proper for protection of the public, for the purpose of rehabilitation of the probationer or both. Upon expiration of the term of probation, if a term is set, further proceedings may be abated by the board if the holder of the license furnishes the board with evidence that the licensee is competent to practice, is of good moral character and has complied with the terms of probation.

C. If evidence fails to establish to the satisfaction of the board that the licensee is competent and is of good moral character or if evidence shows that the licensee has not complied with the terms of probation, the board may revoke or suspend the license. If a license to practice in this state is suspended, the holder of the license may not practice during the term of suspension. A person whose license has been revoked or suspended by the board and who thereafter practices or attempts or offers to practice in New Mexico, unless the period of suspension has expired or been modified by the board or the license reinstated, is guilty of a felony and shall be punished as provided in Section 61-6-20 NMSA 1978.

D. "Unprofessional or dishonorable conduct", as used in this section, means, but is not limited to because of enumeration, conduct of a licensee that includes the following:

(1) procuring, aiding or abetting a criminal abortion or failing to comply with the provisions of the Women's Health and Safety Act;

(2) employing a person to solicit patients for the licensee;

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

(4) obtaining a fee by fraud or misrepresentation;

(5) willfully or negligently divulging a professional confidence;

(6) conviction of an offense punishable by incarceration in a state penitentiary or federal prison or conviction of a misdemeanor associated with the practice of the licensee. A copy of the record of conviction, certified by the clerk of the court entering the conviction, is conclusive evidence;

(7) habitual or excessive use of intoxicants or drugs;

(8) fraud or misrepresentation in applying for or procuring a license to practice in this state or in connection with applying for or procuring renewal, including cheating on or attempting to subvert the licensing examinations;

(9) making false or misleading statements regarding the skill of the licensee or the efficacy or value of the medicine, treatment or remedy prescribed or administered by the licensee or at the direction of the licensee in the treatment of a disease or other condition of the human body or mind;

(10) impersonating another licensee, permitting or allowing a person to use the license of the licensee or practicing as a licensee under a false or assumed name;

(11) aiding or abetting the practice of a person not licensed by the board;

(12) gross negligence in the practice of a licensee;

(13) manifest incapacity or incompetence to practice as a licensee;

(14) discipline imposed on a licensee by another state, including denial, probation, suspension or revocation, based upon acts by the licensee similar to acts described in this section. A certified copy of the record of suspension or revocation of the state making the suspension or revocation is conclusive evidence;

(15) the use of a false, fraudulent or deceptive statement in a document connected with the practice of a licensee;

(16) fee splitting;

(17) the prescribing, administering or dispensing of narcotic, stimulant or hypnotic drugs for other than accepted therapeutic purposes;

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

(19) repeated similar negligent acts;

(20) employing abusive billing practices;

(21) failure to report to the board any adverse action taken against the licensee by:

(a) another licensing jurisdiction;

(b) a peer review body;

(d) a professional or medical society or association;

(e) a governmental agency;

(f) a law enforcement agency; or

(g) a court for acts or conduct similar to acts or conduct that would constitute grounds for action as defined in this section;

(22) failure to report to the board surrender of a license or other authorization to practice in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society following, in lieu of and while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct that would constitute grounds for action as defined in this section;

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

(24) abandonment of patients;

(25) being found mentally incompetent or insane by a court of competent jurisdiction;

(26) injudicious prescribing, administering or dispensing of a drug or medicine;

(27) failure to adequately supervise, as provided by board rule, a medical or surgical assistant or technician or professional licensee who renders health care;

(28) sexual contact with a patient or person who has authority to make medical decisions for a patient, other than the spouse of the licensee;

(29) conduct unbecoming in a person licensed to practice or detrimental to the best interests of the public;

(30) the surrender of a license or withdrawal of an application for a license before another state licensing board while an investigation or disciplinary action is pending before that board for acts or conduct similar to acts or conduct that would constitute grounds for action pursuant to this section;

(31) sexual contact with a former mental health patient of the licensee, other than the spouse of the licensee, within one year from the end of treatment;

(32) sexual contact with a patient when the licensee uses or exploits treatment, knowledge, emotions or influence derived from the previous professional relationship;

(33) improper management of medical records, including failure to maintain timely, accurate, legible and complete medical records;

(34) failure to provide pertinent and necessary medical records to a physician or patient of the physician in a timely manner when legally requested to do so by the patient or by a legally designated representative of the patient;

(35) undertreatment of pain as provided by board rule;

(36) interaction with physicians, hospital personnel, patients, family members or others that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered to a patient;

(37) soliciting or receiving compensation by a physician assistant or anesthesiologist assistant from a person who is not an employer of the assistant;

(38) willfully or negligently divulging privileged information or a professional secret; or

(39) the use of conversion therapy on a minor.

E. As used in this section:

(1) "conversion therapy" means any practice or treatment that seeks to change a person's sexual orientation or gender identity, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward persons of the same sex. "Conversion therapy" does not mean:

(a) counseling or mental health services that provide acceptance, support and understanding of a person without seeking to change gender identity or sexual orientation; or

(b) mental health services that facilitate a person's coping, social support, sexual orientation or gender identity exploration and development, including an intervention to prevent or address unlawful conduct or unsafe sexual practices, without seeking to change gender identity or sexual orientation;

(2) "fee splitting" includes offering, delivering, receiving or accepting any unearned rebate, refunds, commission preference, patronage dividend, discount or other unearned consideration, whether in the form of money or otherwise, as compensation or inducement for referring patients, clients or customers to a person, irrespective of any membership, proprietary interest or co-ownership in or with a person to whom the patients, clients or customers are referred;

(3) "gender identity" means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth;

(4) "minor" means a person under eighteen years of age; and

(5) "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived.

F. Licensees whose licenses are in a probationary status shall pay reasonable expenses for maintaining probationary status, including laboratory costs when laboratory testing of biological fluids are included as a condition of probation."

SECTION 13. Section 61-10-15 NMSA 1978 (being Laws 2016, Chapter 90, Section 12) is amended to read:

"61-10-15. REFUSAL AND REVOCATION OF LICENSE.--

A. Upon satisfactory proof being made to the board that an applicant for or holder of a license to practice osteopathic medicine has been guilty of unprofessional or dishonorable conduct, the board may:

(1) refuse to issue a license to an applicant;

(2) revoke or suspend a license; or

(3) fine, censure or reprimand a licensee.

B. The board may, in its discretion and for good cause shown, place a licensee on probation on the terms and conditions it deems proper for protection of the public or for the purpose of rehabilitation of the probationer, or both. Upon expiration of the term of probation, if a term is set, the board may abate further proceedings if the licensee furnishes the board with evidence that the licensee is competent to practice and has complied with the terms of probation.

C. If evidence fails to establish to the satisfaction of the board that the licensee is competent or if evidence shows that the licensee has not complied with the terms of probation, the board may revoke or suspend the licensee's license. If the board suspends a license, the licensee shall not practice during the term of suspension. A licensee whose license has been revoked or is in suspension and who thereafter practices or attempts or offers to practice in the state is guilty of a fourth degree felony and shall be sentenced under the 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, unless:

(1) the period of suspension has expired;

(2) the board has modified the suspension to permit the practice of osteopathic medicine; or

(3) the board has reinstated the license.

D. The board shall not refuse to issue or renew a license nor shall it suspend or revoke a license for unprofessional or dishonorable conduct unless the person accused has been provided:

(1) at least twenty days' notice in writing of the charge against that person; and

(2) a public hearing by the board, with right of review of the board's decision by the district court of the first judicial district by certiorari, on petition of the party against whom the board's decision is rendered.

E. The board may compel the attendance of witnesses and the production of relevant books and papers for the investigation of matters that may come before it, and the presiding officer of the board may administer the requisite oaths. The board has the same authority to compel the giving of testimony that is conferred on courts of justice.

F. As used in this section:

(1) "fee splitting" means offering, delivering, receiving or accepting any unearned rebate, refund, commission preference, patronage dividend, discount or other unearned consideration, whether in the form of money or otherwise, as compensation or inducement for referring patients, clients or customers to a person or organization, irrespective of any membership, proprietary interest or co-ownership in or with a person to whom the patients, clients or customers are referred; and

(2) "unprofessional or dishonorable conduct" means conduct that the board has proscribed by rule and includes the following conduct of a licensee:

(a) procuring, aiding or abetting an illegal procedure or failing to comply with the provisions of the Women's Health and Safety Act;

(b) employing a person to solicit patients for the licensee;

(d) obtaining a fee by fraud or misrepresentation;

(e) willfully or negligently divulging a professional confidence;

(f) conviction of an offense punishable by incarceration in a state penitentiary or federal prison or conviction of a misdemeanor associated with the practice of the licensee. A copy of the record of conviction, certified by the clerk of the court entering the conviction, is conclusive evidence of conviction;

(g) habitual or excessive use of intoxicants or drugs;

(h) fraud or misrepresentation in applying for or procuring a license to practice in this state or in connection with applying for or procuring renewal, including cheating on or attempting to subvert a licensing examination;

(i) making false or misleading statements regarding the skill of the licensee or the efficacy or value of the medicine, treatment or remedy prescribed or administered by the licensee or at the direction of the licensee in the treatment of a disease or other condition of the human body or mind;

(j) impersonating another licensee, permitting or allowing a person to use the license of the licensee or practicing as a licensee under a false or assumed name;

(k) aiding or abetting the practice of a person not licensed by the board;

(l) gross negligence in the practice of a licensee;

(m) manifest incapacity or incompetence to practice as a licensee;

(n) discipline imposed on a licensee by another state, including denial, probation, suspension or revocation, based upon acts by the licensee similar to acts described in this section. A certified copy of the record of suspension or revocation of the state making the suspension or revocation is conclusive evidence;

(o) the use of a false, fraudulent or deceptive statement in a document connected with the practice of a licensee;

(p) fee splitting;

(q) the prescribing, administering or dispensing of narcotic, stimulant or hypnotic drugs for other than accepted therapeutic purposes;

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

(s) repeated similar negligent acts;

(t) employing abusive billing practices;

(u) failure to report to the board any adverse action taken against the licensee by: 1) another licensing jurisdiction; 2) a peer review body; 3) a health care entity; 4) a professional or medical society or association; 5) a governmental agency; 6) a law enforcement agency; or 7) a court for acts or conduct similar to acts or conduct that would constitute grounds for disciplinary action;

(v) failure to report to the board surrender of a license or other authorization to practice in another state or jurisdiction or surrender of membership on any medical staff or in any medical or professional association or society following, in lieu of and while under disciplinary investigation by any of those authorities or bodies for acts or conduct similar to acts or conduct that would constitute grounds for disciplinary action;

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

(x) abandonment of a patient;

(y) being found mentally incompetent by a court of competent jurisdiction;

(z) injudicious prescribing, administering or dispensing of a drug or medicine;

(aa) failure to adequately supervise, as provided by board rule, an osteopathic physician or osteopathic physician assistant;

(bb) sexual contact with a patient or person who has authority to make medical decisions for a patient, other than the spouse of the licensee;

(cc) conduct unbecoming in a person licensed to practice or detrimental to the best interests of the public;

(dd) the surrender of a license or withdrawal of an application for a license before another state licensing board while an investigation or disciplinary action is pending before that board for acts or conduct similar to acts or conduct that would constitute grounds for action pursuant to this section;

(ee) sexual contact with a former patient of the licensee, other than the spouse of the licensee, within one year from the end of treatment;

(ff) sexual contact with a patient when the licensee uses or exploits treatment, knowledge, emotions or influence derived from the previous professional relationship;

(gg) improper management of medical records, including failure to maintain timely, accurate, legible and complete medical records;

(hh) failure to provide pertinent and necessary medical records to another health care practitioner, to the patient of the osteopathic physician or to any other person in a timely manner when legally requested or authorized to do so by the patient or by a legally designated representative of the patient;

(ii) interaction with osteopathic physicians, hospital personnel, patients, family members or others that interferes with patient care or could reasonably be expected to adversely impact the quality of care rendered to a patient; or

(jj) willfully or negligently divulging privileged information or a professional secret."

SECTION 14. REPEAL.–Sections 30-5-1 through 30-5-3 NMSA 1978 (being Laws 1969, Chapter 67, Sections 1 through 3) are repealed.

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