SB0408

SENATE BILL 408

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Antoinette Sedillo Lopez

AN ACT

RELATING TO HEALTH; PROHIBITING HEALTH CARE PROVIDERS AND STUDENTS SUPERVISED BY HEALTH CARE PROVIDERS FROM PERFORMING INTIMATE EXAMINATIONS ON ANESTHETIZED OR UNCONSCIOUS PATIENTS; PROVIDING GROUNDS FOR DISCIPLINE.

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

SECTION 1. A new section of Public Health Act is enacted to read:

"[NEW MATERIAL] INTIMATE EXAMINATION OF ANESTHETIZED OR UNCONSCIOUS PATIENT PROHIBITED--INFORMED CONSENT.--

A. A health care provider or any student under the supervision of a health care provider treating a patient shall not perform an intimate examination upon an anesthetized or unconscious patient unless:

(1) the patient or the patient's authorized representative has provided informed consent to the examination;

(2) the intimate examination is necessary for diagnostic or treatment purposes; or

(3) a court orders the performance of the intimate examination for the collection of evidence.

B. A health care provider shall be required to obtain informed consent from a patient or a patient's authorized representative before authorizing a student to perform an intimate examination on an unconscious patient when the examination is performed solely for learning purposes and offers no benefit to the patient. If a patient does not recognize a student authorized by a health care provider as a member of the patient's care team, then the intimate examination shall not occur. If informed consent is not granted by the patient to allow a student to perform an intimate examination, the intimate examination by a student shall not take place.

C. Pursuant to Subsection A of this section, to obtain informed consent to perform an intimate examination on an anesthetized or unconscious patient, before performing the patient examination, the health care provider shall:

(1) provide a written or electronic document to the patient or the patient's authorized representative that:

(a) is provided separately from any other notice or agreement;

(b) contains the following heading at the top of the document in not smaller than eighteen-point boldface type: "CONSENT FOR EXAMINATION OF PELVIC REGION";

(d) names one or more health care providers whom the patient or the patient's authorized representative may authorize to perform the patient examination;

(e) states whether there may be a medical student or resident that the patient or the patient's authorized representative authorizes to perform an additional patient examination or observe or otherwise be present at the patient examination, either in person or through electronic means; and

(f) provides the patient or the patient's authorized representative with a series of check boxes that allow the patient or the patient's authorized representative to: 1) consent to the patient examination for diagnosis or treatment and an additional patient examination performed by a student or resident for an educational or training purpose; 2) consent to the patient examination only for diagnosis or treatment; or 3) refuse to consent to the patient examination;

(2) obtain the signature of the patient or the patient's authorized representative on the written or electronic document while witnessed by a third party; and

(3) sign the written or electronic document.

D. As used in this section:

(1) "authorized representative" means a surrogate or person that is legally authorized to represent a patient;

(2) "health care provider" means a person licensed to provide health care in the ordinary course of business;

(3) "informed consent" means explicit, written permission to be obtained by the health care provider from the patient or the patient's authorized representative, without coercion, that includes an explanation of an intimate examination that may take place while the patient is unconscious or under anesthesia, including an intimate examination that may be performed by a medical student;

(4) "intimate examination" means a breast, pelvic, prostate or rectal exam;

(5) "patient's authorized representative" means a person that is authorized to make health care decisions for the patient pursuant to state law; and

(6) "student" means a non-licensed learner under the supervision of a health care provider."

SECTION 2. 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 as a physician, practice as a physician assistant, an anesthesiologist assistant, a genetic counselor, a naturopathic practitioner or naprapathic practitioner or practice 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 an illegal procedure;

(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 licensing jurisdiction, 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 disciplinary action or sanction taken by another jurisdiction is conclusive evidence of the action;

(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 or a pattern of conduct otherwise described in this section or in violation of a board rule;

(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 the denial of licensure, 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 current or 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; or

(40) performing or authorizing a medical student to perform an intimate examination on an anesthetized or unconscious person in the absence of informed consent, necessity for treatment or diagnosis or court order.

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) "intimate examination" means a pelvic, prostate or rectal exam;

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

[(5)] (6) "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] is included as a condition of probation."

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