45th legislature - STATE OF NEW MEXICO - first session, 2001
RELATING TO LICENSURE; CHANGING, EXPANDING AND CLARIFYING LICENSING AND ADMINISTRATIVE PROVISIONS FOR RESPIRATORY CARE PROVIDERS; ADDING GROUNDS FOR DISCIPLINARY ACTION; CHANGING THE QUALIFICATIONS FOR BOARD MEMBERSHIP; CLARIFYING THE MEANING OF "BOARD" IN THE IMPAIRED HEALTH CARE PROVIDER ACT; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 61-7-2 NMSA 1978 (being Laws 1976, Chapter 3, Section 2, as amended) is amended to read:
"61-7-2. DEFINITION.--As used in the Impaired Health
Care Provider Act, "board" means [the boards] a board or
department that [license, register or certify] licenses,
registers or certifies health care providers."
Section 2. Section 61-12B-1 NMSA 1978 (being Laws 1984, Chapter 103, Section 1) is amended to read:
"61-12B-1. SHORT TITLE.--[This act] Chapter 61, Article
12B NMSA 1978 may be cited as the "Respiratory Care Act"."
Section 3. Section 61-12B-2 NMSA 1978 (being Laws 1984, Chapter 103, Section 2) is amended to read:
"61-12B-2. PURPOSE OF ACT.--In the interest of public health, safety and welfare and to protect the public from the unprofessional, improper, incompetent and unlawful practice of respiratory care, it is necessary to provide laws and rules to govern the practice of respiratory care. The primary purpose of the Respiratory Care Act is to safeguard life and health and to promote the public welfare by licensing and regulating the practice of respiratory care in the state."
Section 4. Section 61-12B-3 NMSA 1978 (being Laws 1984, Chapter 103, Section 3, as amended) is amended to read:
"61-12B-3. DEFINITIONS.--As used in the Respiratory Care Act:
A. "board" means the advisory board of respiratory care practitioners;
B. "department" means the regulation and licensing department or that division of the department designated to administer the provisions of the Respiratory Care Act;
C. "respiratory care" means a health care
profession, under medical direction, employed in the therapy,
management, rehabilitation, diagnostic evaluation and care of
patients with deficiencies and abnormalities [which] that
affect the cardiopulmonary system and associated aspects of
other system functions, and the terms "respiratory therapy"
and "inhalation therapy" where such terms mean respiratory
care;
D. "practice of respiratory care" includes [but is
not limited to]:
(1) direct and indirect cardiopulmonary care services that are of comfort, safe, aseptic, preventative and restorative to the patient;
(2) cardiopulmonary care services, including
[but not limited to] the administration of pharmacological,
diagnostic and therapeutic agents related to cardiopulmonary
care necessary to implement treatment, disease prevention,
cardiopulmonary rehabilitation or a diagnostic regimen,
including paramedical therapy and baromedical therapy;
(3) specific diagnostic and testing
techniques employed in the medical management of patients to
assist in diagnosis, monitoring, treatment and research of
cardiopulmonary abnormalities, including [but not limited to]
pulmonary function testing, hemodynamic and physiologic
monitoring of cardiac function and collection of arterial and
venous blood for analysis;
(4) observation, assessment and monitoring of signs and symptoms, general behavior, general physical response to cardiopulmonary care treatment and diagnostic testing, including determination of whether such signs, symptoms, reactions, behavior or general response exhibit abnormal characteristics;
(5) implementation based on observed abnormalities, appropriate reporting, referral, respiratory care protocols or changes in treatment, pursuant to a prescription by a physician authorized to practice medicine or other person authorized by law to prescribe, or the initiation of emergency procedures or as otherwise permitted in the Respiratory Care Act;
(6) establishing and maintaining the natural
airways, insertion and maintenance of artificial airways,
bronchopulmonary hygiene and cardiopulmonary resuscitation,
along with cardiac and ventilatory life support [diagnosis]
assessment and evaluation; and
(7) the practice [of respiratory care]
performed in [any] a clinic, hospital, skilled nursing
facility, private dwelling or other place deemed appropriate
or necessary by the [board] department;
E. "expanded practice" means the practice of
respiratory care by a respiratory care practitioner who has
[completed a recognized program of study] been prepared
through a formal training program to function beyond the scope
of practice of respiratory care as defined by rule of the
department;
F. "respiratory care practitioner" means a person
who is licensed to practice respiratory care in New Mexico;
[The respiratory care practitioner may transcribe and
implement a physician's written and verbal orders pertaining
to the practice of respiratory care and]
G. "respiratory care protocols" [meaning] means a
predetermined, written medical care plan, which can include
standing orders;
[G.] H. "respiratory therapy training program"
means [a program accredited or recognized by the American
medical association's committee on allied health education and
accreditation in collaboration with the joint review committee
for respiratory therapy education] an education course of
study as defined by rule of the department; and
[H.] I. "superintendent" means the superintendent
of regulation and licensing."
Section 5. Section 61-12B-4 NMSA 1978 (being Laws 1984, Chapter 103, Section 4, as amended) is amended to read:
"61-12B-4. LICENSE REQUIRED--EXCEPTIONS.--
A. No person shall practice respiratory care or
represent himself to be a respiratory care practitioner unless
he is licensed [under] pursuant to the provisions of the
Respiratory Care Act, except as otherwise provided by that
act.
B. A respiratory care practitioner may transcribe and implement the written or verbal orders of a physician or other person authorized by law to prescribe pertaining to the practice of respiratory care and respiratory care protocols.
[B.] C. Nothing in the Respiratory Care Act is
intended to limit, preclude or otherwise interfere with:
(1) the practices of other persons and health providers licensed by appropriate agencies of New Mexico;
(2) self-care by a patient; [or]
(3) gratuitous care by a friend or family member who does not represent or hold himself out to be a respiratory care practitioner; or
(4) respiratory care services rendered in case of an emergency.
[C.] D. An individual who has demonstrated
competency in one or more areas covered by the Respiratory
Care Act may perform [only] those functions that he is
qualified by examination to perform; [so long as the testing
body offering the examination is certified by the national
commission for health certifying agencies] provided that the
examining body or testing entity is recognized nationally for
expertise in evaluating the competency of persons performing
those functions covered by that act or department rules. The
department shall establish by rule those certifying agencies
and testing entities that are acceptable to the department.
[D.] E. The Respiratory Care Act does not prohibit
qualified clinical laboratory personnel who work in facilities
licensed [by] pursuant to the provisions of the federal
Clinical Laboratories Improvement Act of 1967, as amended, or
accredited by the college of American pathologists or the
joint commission on accreditation of [hospitals] healthcare
organizations from performing recognized functions and duties
of medical laboratory personnel for which they are
appropriately trained and certified."
Section 6. Section 61-12B-5 NMSA 1978 (being Laws 1984, Chapter 103, Section 5, as amended) is amended to read:
"61-12B-5. ADVISORY BOARD CREATED.--
A. The superintendent shall appoint an "advisory board of respiratory care practitioners" consisting of five members as follows:
(1) one physician licensed in New Mexico who is knowledgeable in respiratory care;
(2) two respiratory care practitioners who are residents of New Mexico, licensed by the department and in good standing. At least one of the respiratory care practitioners shall have been actively engaged in the practice of respiratory care for at least five years immediately preceding appointment or reappointment; and
(3) two public members who are residents of
New Mexico. [The] A public [members] member shall not have
been licensed as a respiratory care [practitioners]
practitioner nor shall [they] he have any financial interest,
direct or indirect, in the occupation to be regulated.
B. [Each] A member shall serve no more than two
consecutive three-year terms.
C. [The members] A member of the board shall
receive per diem and mileage as provided for nonsalaried
public officers in the Per Diem and Mileage Act and shall
receive no other compensation, perquisite or allowance in
connection with the discharge of [their] his duties as a board
[members. Three members, including at least one public
member, constitute a quorum] member.
D. [Any] A member failing [after proper notice] to
attend [any] three consecutive regular and properly noticed
meetings of the board without a reasonable excuse shall be
automatically removed from the board.
E. In the event of a vacancy, the board shall immediately notify the superintendent of the vacancy. Within ninety days of receiving notice of a vacancy, the superintendent shall appoint a qualified person to fill the remainder of the unexpired term.
F. A majority of the board members currently serving constitutes a quorum of the board.
G. The board shall meet at least twice a year and at such other times as it deems necessary.
H. The board shall annually elect officers as deemed necessary to administer its duties."
Section 7. Section 61-12B-6 NMSA 1978 (being Laws 1984, Chapter 103, Section 6, as amended) is amended to read:
"61-12B-6. DEPARTMENT--DUTIES AND POWERS.--
A. The department, in consultation with the board, shall:
(1) evaluate the qualifications of applicants
and review [any] the required examination results of
applicants. [and] The department may recognize the entry level
examination written by the national board for respiratory care
[inc.] or [any] a successor board;
(2) [collect and review data and statistics
with respect to respiratory care, treatment, services or
facilities for the purpose of granting, suspending or revoking
respiratory care licenses] promulgate rules as may be
necessary to implement the provisions of the Respiratory Care
Act;
(3) issue and renew licenses and temporary permits to qualified applicants who meet the requirements of the Respiratory Care Act; and
(4) administer, coordinate and enforce the
provisions of the Respiratory Care Act and investigate persons
engaging in practices that may violate the provisions of that
act [and
(5) adopt rules and regulations to allow the
interstate transport of patients].
B. The department, in consultation with the board, may:
(1) conduct [any required] examinations of
respiratory care practitioner applicants [and] as required by
rules of the department;
(2) reprimand, fine, deny, suspend or revoke
[temporary permits or licenses] a license or temporary permit
to practice respiratory care as provided in the Respiratory
Care Act in accordance with the provisions of the Uniform
Licensing Act;
(3) for the purpose of investigating complaints against applicants and licensees, issue investigative subpoenas prior to the issuance of a notice of contemplated action as set forth in the Uniform Licensing Act;
(4) enforce and administer the provisions of the Impaired Health Care Provider Act and promulgate rules pursuant to that act;
(5) promulgate rules or disciplinary guidelines relating to impaired practitioners;
(6) promulgate rules to allow the interstate transport of patients; and
(7) promulgate rules to determine and regulate the scope and qualifications for expanded practice for respiratory care practitioners."
Section 8. Section 61-12B-7 NMSA 1978 (being Laws 1984, Chapter 103, Section 7, as amended) is amended to read:
"61-12B-7. LICENSING BY TRAINING AND EXAMINATION.--[A.
Any] A person desiring to become licensed as a respiratory
care practitioner shall make application to the department on
a written form and in such manner as the department
prescribes, pay all required application fees and certify and
furnish evidence to the department that the applicant:
[(1)] A. has successfully completed a training
program as defined in the Respiratory Care Act and set forth
by rules of the department;
[(2)] B. has passed an entry level examination, as
specified by rules [and regulations] of the department, for
respiratory care practitioners administered by the national
board [of] for respiratory care [incorporated] or [any] a
successor board;
[(3)] C. is of good moral character; and
[(4)] D. has successfully completed [any] other
training or education programs and passed [any] other
examinations as [required] set forth by rules [and
regulations] of the department.
[B. The department, in consultation with the
board, shall develop rules and regulations that describe the
scope and qualifications for expanded practice roles of
respiratory care practitioners.]"
Section 9. Section 61-12B-8 NMSA 1978 (being Laws 1984, Chapter 103, Section 8, as amended) is amended to read:
"61-12B-8. LICENSING WITHOUT TRAINING AND
EXAMINATION.--The department shall waive the education and
examination requirements for [applicants] an applicant who
[present] presents proof [of current licensure] that he is
currently licensed in good standing in a [state which]
jurisdiction that has standards for licensure that are at
least equal to those for licensure in New Mexico as required
by the Respiratory Care Act."
Section 10. Section 61-12B-9 NMSA 1978 (being Laws 1984, Chapter 103, Section 9, as amended) is amended to read:
"61-12B-9. OTHER LICENSING PROVISIONS.--
A. The department, in consultation with the board,
shall adopt rules [and regulations] for mandatory continuing
education requirements that shall be completed as a condition
for renewal of [any] a license issued pursuant to the
provisions of the Respiratory Care Act.
B. The department, in consultation with the board,
may adopt rules [and regulations] for issuance of temporary
permits [for] to students and graduates of approved training
programs to practice limited respiratory care under the direct
supervision of a licensed respiratory care practitioner or
physician. Rules [and regulations] shall be adopted defining
[for the purposes of the Respiratory Care Act] the terms
["students"] "student" and "direct supervision".
C. [The] A license issued by the department shall
describe the licensed person as a "respiratory care
practitioner licensed by the New Mexico regulation and
licensing department" [and shall be displayed in the
licensee's place of business].
D. Unless licensed as a respiratory care practitioner pursuant to the provisions of the Respiratory Care Act, no person shall use the title "respiratory care practitioner", the abbreviation "R.C.P." or any other title or abbreviation to indicate that the person is a licensed respiratory care practitioner.
E. A copy of [the] a valid license or temporary
permit issued pursuant to the Respiratory Care Act shall be
[displayed] kept on file at the respiratory care
practitioner's or temporary permittee's place of employment.
F. [Licenses, including initial licenses, shall be
issued for a period of two years.] A respiratory care
practitioner license shall expire on September 30, annually or
biennially, as provided by rules of the department."
Section 11. Section 61-12B-10 NMSA 1978 (being Laws 1984, Chapter 103, Section 10) is amended to read:
"61-12B-10. LICENSURE--DATE REQUIRED.--[No person shall
be required to be licensed as a respiratory care practitioner
until October 1, 1984.] The provisions of the Criminal
Offender Employment Act shall govern consideration of criminal
records required or permitted by the Respiratory Care Act."
Section 12. Section 61-12B-11 NMSA 1978 (being Laws 1984, Chapter 103, Section 11, as amended) is amended to read:
"61-12B-11. FEES.--
A. The superintendent, in consultation with the board, shall by rule establish a schedule of reasonable fees for licenses, temporary permits and renewal of licenses for respiratory care practitioners.
B. The initial application fee shall be set in an amount not to exceed one hundred fifty dollars ($150).
C. A [biennial] license renewal fee shall be
established in an amount not to exceed one hundred fifty
dollars ($150)."
Section 13. Section 61-12B-12 NMSA 1978 (being Laws 1984, Chapter 103, Section 12, as amended) is amended to read:
"61-12B-12. DENIAL, SUSPENSION, REVOCATION AND REINSTATEMENT OF LICENSES.--
A. The superintendent [may refuse to issue or may
suspend or revoke any license] in consultation with the board
and in accordance with the rules set forth by the department
and the procedures set forth in the Uniform Licensing Act may
take disciplinary action against a license or temporary permit
held or applied for pursuant to the Respiratory Care Act for
[any of] the following causes:
(1) fraud or deceit in the procurement of
[any] or attempt to procure a license [under that] or
temporary permit;
(2) imposition of any disciplinary action for
an act that would be grounds for disciplinary action by the
department pursuant to the Respiratory Care Act or as set
forth by rules of the department upon a person by an agency of
another [state which] jurisdiction that regulates respiratory
care [but not to exceed the period or extent of such action];
(3) conviction of a crime [which] that
substantially relates to the qualifications, functions or
duties of a respiratory care practitioner. The record of
conviction or a certified copy thereof shall be conclusive
evidence of the conviction;
(4) impersonating or acting as a proxy for an
applicant in [any] an examination given [under that] pursuant
to provisions of the Respiratory Care Act;
(5) habitual or excessive use of intoxicants or drugs;
(6) gross negligence as defined by rules of
the department in the practice [as a] of respiratory care
[practitioner];
(7) violating [any of the provisions] a
provision of the Respiratory Care Act or [any rules or
regulations] a rule duly adopted [under] pursuant to that act
or aiding or abetting [any] a person to violate [the
provisions] a provision of or [any rules or regulations] a
rule adopted [under] pursuant to that act;
(8) engaging in unprofessional conduct [or]
as defined by rules set forth by the department;
(9) committing [any] a fraudulent, dishonest
or corrupt act [which] that is substantially related to the
qualifications, functions or duties of a respiratory care
practitioner;
(10) practicing respiratory care without a valid license or temporary permit;
(11) aiding or abetting the practice of respiratory care by a person who is not licensed or who has not been issued a temporary permit by the department;
(12) conviction of a felony. The record of conviction or a certified copy thereof shall be conclusive evidence of the conviction;
(13) violating a provision of the Controlled Substances Act;
(14) failing to furnish the department or its investigators or representatives with information requested by the department in the course of an official investigation;
(15) practicing beyond the scope of respiratory care as defined in the Respiratory Care Act or as set forth by rules of the department; or
(16) surrendering a license, certificate or permit to practice respiratory care in another jurisdiction while an investigation or disciplinary proceeding is pending for an act or conduct that would constitute grounds for disciplinary action under the Respiratory Care Act.
B. [One year from the date of revocation of a
license under the Respiratory Care Act, application may be
made to the superintendent for reinstatement, restoration or
modification of probation.] The [superintendent] department,
in consultation with the board, [shall have the discretion to
accept or reject an application and may require an examination
for such reinstatement, restoration or modification of
probation when it is deemed appropriate.
C. The department, in consultation with the board,
shall write rules and regulations to establish guidelines for
the reinstatement or restoration of a license suspended or
revoked due to the abuse of intoxicants or drugs] may impose
conditions on and promulgate rules relating to the
reapplication or reinstatement of applicants, licensees or
temporary permittees who have been subject to disciplinary
action by the department."
Section 14. Section 61-12B-13 NMSA 1978 (being Laws 1984, Chapter 103, Section 13, as amended) is amended to read:
"61-12B-13. RESPIRATORY CARE FUND CREATED--DISPOSITION--METHOD OF PAYMENT.--
A. There is created in the state treasury the "respiratory care fund".
B. All funds received by the superintendent and money collected under the Respiratory Care Act shall be deposited with the state treasurer. The state treasurer shall place the money to the credit of the respiratory care fund.
C. All amounts paid into the respiratory care fund
shall be expended only pursuant to appropriation by the
legislature and in accordance with the budget approved by the
department of finance and administration and shall be used
only for the purposes of implementing the provisions of the
Respiratory Care Act. [All money unused at the end of the
fiscal year shall remain in the respiratory care fund for use
in accordance with the provisions of the Respiratory Care
Act.] Any unexpended or unencumbered balance remaining at the
end of a fiscal year shall not revert to the general fund."
Section 15. Section 61-12B-15 NMSA 1978 (being Laws 1984, Chapter 103, Section 15) is amended to read:
"61-12B-15. ENFORCEMENT.--
A. [Violation of any] A person who violates
a provision of the Respiratory Care Act is guilty of a
misdemeanor and shall be sentenced in accordance with the
provisions of Section 31-19-1 NMSA 1978.
B. The department may bring civil action in any district court to enforce any of the provisions of the Respiratory Care Act."
Section 16. A new section of the Respiratory Care Act is enacted to read:
"[NEW MATERIAL] SEVERABILITY.--If any part or application of the Respiratory Care Act is held invalid, the remainder or its application to other situations or persons shall not be affected."
Section 17. REPEAL.--Section 61-12B-14 NMSA 1978 (being Laws 1984, Chapter 103, Section 14, as amended) is repealed.