46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO PAIN MANAGEMENT; AMENDING THE PAIN RELIEF ACT; PROVIDING RESPONSIBILITIES FOR THE NEW MEXICO BOARD OF MEDICAL EXAMINERS; ESTABLISHING CRITERIA FOR CERTAIN ACTIONS; CREATING THE PAIN MANAGEMENT ADVISORY COUNCIL; MAKING AN APPROPRIATION.

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

Section 1. Section 24-2D-2 NMSA 1978 (being Laws 1999, Chapter 126, Section 2) is amended to read:

"24-2D-2. DEFINITIONS.--As used in the Pain Relief Act:

A. "accepted guideline" means a care or practice guideline for pain management developed by the American pain society, the American [geriatric] geriatrics society, the agency for health care [policy] research and quality, the national cancer pain initiatives or any other nationally recognized clinical or professional association, a [speciality] specialty society or government-sponsored agency that has developed practice or care guidelines based on original research or on review of existing research and expert opinion whose guidelines have been accepted by the New Mexico board of medical examiners and other boards of health care providers with prescriptive authority;

B. "board" means the licensing board of a health care provider;

C. "clinical expert" means a person who by reason of specialized education or substantial relevant experience in pain management has knowledge regarding current standards, practices and guidelines;

D. "disciplinary action" means [any] a formal action taken by a board against a health care provider, upon a finding of probable cause that the health care provider has engaged in conduct that violates the Medical Practice Act;

E. "health care provider" means a person licensed or otherwise authorized by law to provide health care in the ordinary course of business or practice of his profession and to have prescriptive authority within the limits of [their] his license;

[F. "intractable pain" means a state of pain, even if recurring, in which reasonable efforts to remove or remedy the cause of the pain have failed or have proven inadequate; and]

F. "pain" means a condition of bodily sensation of serious physical discomfort that requires the services of a health care provider to alleviate, including discomfort that is persistent and chronic in duration; and

G. "therapeutic purpose" means the use of pharmaceutical and non-pharmaceutical medical treatment that conforms substantially to accepted guidelines for pain management."

Section 2. Section 24-2D-3 NMSA 1978 (being Laws 1999, Chapter 126, Section 3) is amended to read:

"24-2D-3. DISCIPLINARY ACTION--EVIDENTIARY REQUIREMENTS.--

A. No health care provider who prescribes, dispenses or administers medical treatment for the purpose of relieving [intractable] pain, and who can demonstrate by reference to an accepted guideline that his practice substantially complies with that guideline and with the standards of practice identified in Section [4 of the Pain Relief Act] 24-2D-4 NMSA 1978, shall be subject to disciplinary action or criminal prosecution, unless the showing of substantial compliance with an accepted guideline is rebutted by testimony of at least two unaffiliated clinical [expert testimony. If no currently accepted guidelines are available, then] experts prior to initiation of the action. Rules issued by the board may serve the function of such guidelines for purposes of the Pain Relief Act. The board rules [must] shall conform to the intent of that act. Guidelines established primarily for purposes of coverage, payment or reimbursement do not qualify as an "accepted guideline" when offered to limit treatment options otherwise covered within the Pain Relief Act.

B. In the event that a disciplinary action or criminal prosecution is pursued, the board or prosecutor shall produce clinical expert testimony supporting the finding or charge of violation of disciplinary standards or other legal requirements on the part of the health care provider. A showing of substantial compliance with an accepted guideline [can] may only be rebutted by clinical expert testimony.

C. The provisions of this section [shall] apply to health care providers in the treatment of [all patients for intractable] pain, regardless of [the patients'] a patient's prior or current chemical dependency or addiction. [The] Each board [may] shall develop [and issue] rules establishing standards and procedures for the application of the Pain Relief Act to the care and treatment of chemically dependent individuals.

D. In an action brought by a board against a health care provider based on treatment of a patient for pain, the board shall consider the totality of the circumstances and may not use as the sole basis of the action:

(1) a patient's age;

(2) a patient's diagnosis;

(3) a patient's prognosis;

(4) a patient's history of drug abuse;

(5) the absence of consultation with a pain specialist; or

(6) the quantity of medication prescribed or dispensed."

Section 3. Section 61-6-5 NMSA 1978 (being Laws 1973, Chapter 361, Section 2, as amended) is amended to read:

"61-6-5. DUTIES AND POWERS.--The board shall:

A. enforce and administer the provisions of the Medical Practice Act, the Physician Assistant Act and the Impaired [Physician] Health Care Provider Act;

B. adopt, publish and file, in accordance with the Uniform Licensing Act and the State Rules Act, all rules and regulations for the implementation and enforcement of the provisions of the Medical Practice Act, the Physician Assistant Act and the Impaired [Physician] Health Care Provider Act;

C. adopt and use a seal;

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

E. take testimony on any matters within the board's jurisdiction;

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

G. keep a record of all examinations held, together with the names and addresses of all persons taking the examinations and the examination results, and at the earliest date possible give written examination results to each applicant examined;

H. certify as passing each applicant who obtains a passing grade indicating successful completion of each subject upon which he is examined;

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

J. grant, deny, review, suspend and revoke licenses to practice medicine and censure, reprimand, fine and place on probation and stipulation physicians in accordance with the Uniform Licensing Act for any cause stated in the Medical Practice Act;

K. hire staff and administrators as necessary to carry out the provisions of the Medical Practice Act;

L. have the authority to hire or contract with investigators to investigate possible violations of the Medical Practice Act;

M. have the authority to hire a competent attorney to give advice and counsel in regard to any matter connected with the duties of the board, to represent the board in any legal proceedings and to aid in the enforcement of the laws in relation to the medical profession and to fix the compensation to be paid to such attorney; provided, however, that such attorney shall be compensated from the funds of the board [including those provided for in Section 61-6-28 NMSA 1978];

N. establish continuing medical education requirements for physicians and continuing education requirements for physician assistants; [and]

O. establish committees as it deems necessary for carrying on its business;

P. establish pain management guidelines, review national standards for pain management and annually update those guidelines; and

Q. require pain management continuing medical education for all practitioners."

Section 4. [NEW MATERIAL] PAIN MANAGEMENT ADVISORY COUNCIL CREATED--DUTIES.--

A. The "pain management advisory council" is created in the office of the governor. The council consists of one representative each from the New Mexico board of medical examiners, the board of nursing, the board of pharmacy, the board of osteopathic medical examiners, the board of acupuncture and oriental medicine, the university of New Mexico health sciences center, a statewide medical association, a statewide association of pharmacists, a statewide association of nurse practitioners, a statewide association of osteopathic physicians, one person who is a consumer health care advocate and three persons who have no direct ties or pecuniary interest in the health care fields.

B. The council shall meet at least quarterly to review current pain management practices in New Mexico and national pain management standards and educational efforts for both consumers and professionals and shall recommend pain management guidelines for each health care profession licensed in New Mexico to respective boards of professionals with prescriptive authority.

Section 5. APPROPRIATION.--Twenty-five thousand dollars ($25,000) is appropriated from the general fund to the office of the governor for expenditure in fiscal year 2004 for the purpose of supporting the work of the pain management advisory council. Any unexpended or unencumbered balance remaining at the end of fiscal year 2004 shall revert to the general fund.