HOUSE BILL 371
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Edward C. Sandoval
AN ACT
RELATING TO THE EXECUTIVE DEPARTMENT; TRANSFERRING THE BEHAVIORAL HEALTH SERVICES DIVISION FROM THE DEPARTMENT OF HEALTH TO THE HUMAN SERVICES DEPARTMENT; PROVIDING FOR THE TRANSFER OF PERSONNEL, PROPERTY, CONTRACTS AND REFERENCES IN LAW; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 9-7-4 NMSA 1978 (being Laws 1991, Chapter 25, Section 16, as amended) is amended to read:
"9-7-4. DEPARTMENT ESTABLISHED.--
A. There is created in the executive branch the "department of health". The department shall be a cabinet department and shall include, but not be limited to, the programs and functions of the public health division [the behavioral health services division] and the scientific laboratory.
B. All references in the law to the public health division of the health and environment department, [the behavioral health services division of the health and environment department] the state department of public health, the public health department, the health services division or the state board of health shall be construed as referring to the department.
C. The administrative services division of the department shall provide clerical, recordkeeping and administrative support to the department, including, but not limited to, the areas of personnel, budget, procurement and contracting.
D. The information technology division shall have all those powers and duties conferred upon it by the secretary with the consent of the governor."
Section 2. Section 9-8-1 NMSA 1978 (being Laws 1977, Chapter 252, Section 1) is amended to read:
"9-8-1. SHORT TITLE.--[Sections 1 through 14 of this act] Chapter 9, Article 8 NMSA 1978 may be cited as the "Human Services Department Act"."
Section 3. Section 9-8-4 NMSA 1978 (being Laws 1977, Chapter 252, Section 4, as amended) is amended to read:
"9-8-4. DEPARTMENT ESTABLISHED.--
A. There is created in the executive branch the "human services department". The department shall be a cabinet department and shall consist of, but not be limited to, [three] six divisions as follows:
[A.] (1) the income support division;
[B.] (2) the [social] administrative services division; [and]
(3) the medical assistance division;
(4) the child support enforcement division;
(5) the behavioral health services division; and
[C.] (6) the information technology division.
B. All references in the law to the behavioral health services division of the department of health shall be construed as referring to the human services department."
Section 4. A new section of the Human Services Department Act is enacted to read:
"[NEW MATERIAL] BEHAVIORAL HEALTH SERVICES DIVISION--POWERS AND DUTIES OF THE HUMAN SERVICES DEPARTMENT.--Subject to appropriation, the department shall:
A. contract for behavioral health treatment and support services, including mental health, alcoholism and other substance abuse services;
B. establish standards for the delivery of behavioral health services, including quality management and improvement, performance measures, accessibility and availability of services, utilization management, credentialing and recredentialing, rights and responsibilities of providers, preventive behavioral health services, clinical treatment and evaluation and the documentation and confidentiality of client records;
C. ensure that all behavioral health services, including mental health and substance abuse services, that are provided, contracted for or approved are in compliance with the requirements of Section 9-7-6.4 NMSA 1978;
D. assume responsibility for and implement adult mental health and substance abuse services in the state in coordination with the children, youth and families department;
E. establish criteria for determining individual eligibility for behavioral health services; and
F. maintain a management information system in accordance with standards for reporting clinical and fiscal information."
Section 5. Section 11-7-2 NMSA 1978 (being Laws 1969, Chapter 118, Section 2, as amended) is amended to read:
"11-7-2. COMPACT COORDINATOR--POWERS AND DUTIES.--Pursuant to the Interstate Compact on Mental Health, the director of the behavioral health services division of the [health and environment] human services department is designated as the compact administrator and, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms of the compact. The compact administrator is authorized, empowered and directed to cooperate with all departments, agencies and officers of and in the government of this state and its subdivisions in facilitating the proper administration of the compact or of any supplementary agreement entered into by this state under the compact."
Section 6. Section 24-1-2 NMSA 1978 (being Laws 1973, Chapter 359, Section 2, as amended) is amended to read:
"24-1-2. DEFINITIONS.--As used in the Public Health Act:
A. "department" or "division" means the children, youth and families department as to child care centers, residential treatment centers that serve persons up to twenty-one years of age, community mental health centers that serve only persons up to twenty-one years of age and day treatment centers that serve persons up to twenty-one years of age, and the department of health as to all other health facilities, unless otherwise designated;
B. "director" means the secretary;
C. "person", when used without further qualification, means an individual or any other form of entity recognized by law;
D. "health facility" means a public hospital, profit or nonprofit private hospital, general or special hospital, outpatient facility, maternity home or shelter, adult daycare facility, nursing home, intermediate care facility, boarding home not under the control of an institution of higher learning, child care center, shelter care home, diagnostic and treatment center, rehabilitation center, infirmary, community mental health center that serves both children and adults or adults only, residential treatment center that serves persons up to twenty-one years of age, community mental health center that serves only persons up to twenty-one years of age and day treatment center that serves persons up to twenty-one years of age or a health service organization operating as a free-standing hospice or a home health agency. The designation of these entities as health facilities is only for the purposes of definition in the Public Health Act and does not imply that a free-standing hospice or a home health agency is considered a health facility for the purposes of other provisions of state or federal laws. "Health facility" also includes those facilities that, by federal regulation, must be licensed by the state to obtain or maintain full or partial, permanent or temporary federal funding. It does not include the offices and treatment rooms of licensed private practitioners; and
E. "secretary" means the secretary of children, youth and families as to child care centers and facilities and the secretary of health as to all other health facilities."
Section 7. Section 24-1-5.7 NMSA 1978 (being Laws 2003, Chapter 190, Section 1) is amended to read:
"24-1-5.7. METHADONE CLINICS--REGULATION BY THE HUMAN SERVICES DEPARTMENT [OF HEALTH].--
A. The federal government requires the state to approve the establishment of all new methadone clinics. In an effort to maintain compliance with the federal requirement, the human services department [of health] shall regulate the establishment and continuance of methadone clinics in New Mexico in accordance with its powers and duties [as the state's public health agency and drug abuse agency].
B. In regulating methadone clinics, the human services department [of health] shall perform an assessment of the need for clinics and develop clinical and administrative standards as required by federal law. The human services department may consider other factors it deems necessary to ensure the provision of drug abuse treatment services and the protection of the health and safety of New Mexico [citizens] residents.
C. For the purposes of this section, "methadone clinic" means a public or private facility that dispenses methadone for the detoxification treatment or maintenance treatment of narcotic addicts."
Section 8. Section 28-10-1 NMSA 1978 (being Laws 1973, Chapter 349, Section 1, as amended) is amended to read:
"28-10-1. GOVERNOR'S COMMISSION ON DISABILITY.--
A. There is created the "governor's commission on disability" consisting of fifteen members, nine of whom shall be appointed by the governor. The six remaining members shall be the director of the vocational rehabilitation division of the public education department, the secretary of labor or [his] the secretary's designee, the director of the behavioral health services division of the human services department [of health], the secretary of children, youth and families or [his] the secretary's designee, the [director] secretary of [the state agency on] aging and long-term services or [his] the secretary's designee and the secretary of human services or [his] the secretary's designee. Initially, three members shall be appointed for terms ending December 31, 1978, three members for terms ending December 31, 1980 and three members for terms ending December 31, 1982. Thereafter, appointments shall be for six years expiring on December 31 of even-numbered years. Appointed members shall be appointed from different geographic areas of the state and from the major disability services in the state. Appointed members shall include individuals with disabilities, representatives of government and private enterprise, parents or guardians of individuals with disabilities and professionals in, or those who are interested in, service for individuals with disabilities. Not more than five of the members appointed by the governor shall be of the same political party.
B. A majority of the members of the commission constitutes a quorum for the transaction of business. The commission shall meet at least twice a year and shall annually elect a [chairman] chair and a vice [chairman] chair.
C. The commission shall be primarily concerned with those individuals with disabilities who have a condition [which] that, regardless of its physical or mental origin, constitutes a substantial occupational disadvantage."
Section 9. Section 43-1-3 NMSA 1978 (being Laws 1977, Chapter 279, Section 2, as amended) is amended to read:
"43-1-3. DEFINITIONS.--As used in the Mental Health and Developmental Disabilities Code:
A. "aversive stimuli" means anything [which] that, because it is believed to be unreasonably unpleasant, uncomfortable or distasteful to the client, is administered or done to the client for the purpose of reducing the frequency of a behavior, but does not include verbal therapies, physical restrictions to prevent imminent harm to self or others or psychotropic medications [which] that are not used for purposes of punishment;
B. "client" means any patient who is requesting or receiving mental health services or any person requesting or receiving developmental disabilities services or who is present in a mental health or developmental disabilities facility for the purpose of receiving such services or who has been placed in a mental health or developmental disabilities facility by [his] the person's parent or guardian or by any court order;
C. "code" means the Mental Health and Developmental Disabilities Code;
D. "consistent with the least drastic means principle" means that the habilitation or treatment and the conditions of habilitation or treatment for the client, separately and in combination:
(1) are no more harsh, hazardous or intrusive than necessary to achieve acceptable treatment objectives for the client;
(2) involve no restrictions on physical movement and no requirement for residential care except as reasonably necessary for the administration of treatment or for the protection of the client or others from physical injury; and
(3) are conducted at the suitable available facility closest to the client's place of residence;
E. "convulsive treatment" means any form of mental health treatment [which] that depends upon creation of a convulsion by any means, including but not limited to electroconvulsive treatment and insulin coma treatment;
F. "court" means a district court of New Mexico;
G. "department" or "division" means the behavioral health services division of the human services department [of health];
H. "developmental disability" means a disability of a person [which] that is attributable to mental retardation, cerebral palsy, autism or neurological dysfunction [which] that requires treatment or habilitation similar to that provided to persons with mental retardation;
I. "evaluation facility" means a community mental health or developmental disability program or a medical facility [having] that has psychiatric or developmental disability services available, including the New Mexico behavioral health institute at Las Vegas, the Los Lunas medical center or, if none of the foregoing is reasonably available or appropriate, the office of a licensed physician or a certified psychologist, [any of which shall be] and that is capable of performing a mental status examination adequate to determine the need for involuntary treatment;
J. "experimental treatment" means any mental health or developmental disabilities treatment [which] that presents significant risk of physical harm, but does not include accepted treatment used in competent practice of medicine and psychology and supported by scientifically acceptable studies;
K. "grave passive neglect" means failure to provide for basic personal or medical needs or for one's own safety to such an extent that it is more likely than not that serious bodily harm will result in the near future;
L. "habilitation" means the process by which professional persons and their staff assist the developmentally disabled client in acquiring and maintaining those skills and behaviors [which] that enable [him] the person to cope more effectively with the demands of [his own person and of his] the person's self and environment and to raise the level of [his] the person's physical, mental and social efficiency. "Habilitation" includes but is not limited to programs of formal, structured education and treatment;
M. "likelihood of serious harm to oneself" means that it is more likely than not that in the near future the person will attempt to commit suicide or will cause serious bodily harm to [himself] the person's self by violent or other self-destructive means, including but not limited to grave passive neglect;
N. "likelihood of serious harm to others" means that it is more likely than not that in the near future [the] a person will inflict serious, unjustified bodily harm on another person or commit a criminal sexual offense, as evidenced by behavior causing, attempting or threatening such harm, which behavior gives rise to a reasonable fear of such harm from the person;
O. "mental disorder" means [the] substantial disorder of [the] a person's emotional processes, thought or cognition [which] that grossly impairs judgment, behavior or capacity to recognize reality, but does not mean developmental disability;
P. "mental health or developmental disabilities professional" means a physician or other professional who by training or experience is qualified to work with individuals with mental disorders or developmental disabilities;
Q. "physician" or "certified psychologist", when used for the purpose of hospital admittance or discharge, means a physician or certified psychologist who has been granted admitting privileges at a hospital licensed by the department of health, if such privileges are required;
R. "psychosurgery":
(1) means those operations currently referred to as lobotomy, psychiatric surgery and behavioral surgery and all other forms of brain surgery if the surgery is performed for the purpose of the following:
[(1)] (a) modification or control of thoughts, feelings, actions or behavior rather than the treatment of a known and diagnosed physical disease of the brain;
[(2)] (b) treatment of abnormal brain function or normal brain tissue in order to control thoughts, feelings, actions or behavior; or
[(3)] (c) treatment of abnormal brain function or abnormal brain tissue in order to modify thoughts, feelings, actions or behavior when the abnormality is not an established cause for those thoughts, feelings, actions or behavior; and
(2) does not include prefrontal sonic treatment in which there is no destruction of brain tissue;
S. "residential treatment or habilitation program" means diagnosis, evaluation, care, treatment or habilitation rendered inside or on the premises of a mental health or developmental disabilities facility, hospital, clinic, institution or supervisory residence or nursing home when the [individual] client resides on the premises; and
T. "treatment" means any effort to accomplish a significant change in the mental or emotional condition or behavior of the client."
Section 10. Section 52-4-1 NMSA 1978 (being Laws 1983, Chapter 116, Section 1, as amended) is amended to read:
"52-4-l. DEFINITION--HEALTH CARE PROVIDER.--As used in Chapter 52 NMSA 1978, "health care provider" means:
A. a hospital maintained by the state or a political subdivision of the state or any place currently licensed as a hospital by the department of health that has:
(1) accommodations for resident bed patients;
(2) a licensed professional registered nurse always on duty or call;
(3) a laboratory; and
(4) an operating room where surgical operations are performed;
B. an optometrist licensed pursuant to the provisions of Chapter 61, Article 2 NMSA 1978;
C. a [chiropractor] chiropractic physician licensed pursuant to the provisions of Chapter 61, Article 4 NMSA 1978;
D. a dentist licensed pursuant to the provisions of Chapter 61, Article 5 NMSA 1978;
E. a physician licensed pursuant to the provisions of Chapter 61, Article 6 NMSA 1978;
F. a podiatrist licensed pursuant to the provisions of Chapter 61, Article 8 NMSA 1978;
G. an osteopathic physician licensed pursuant to the provisions of Chapter 61, Article 10 NMSA 1978;
H. a physician assistant registered pursuant to the provisions of Section 61-6-7 NMSA 1978;
I. a certified nurse practitioner licensed pursuant to Section 61-3-23.2 NMSA 1978;
J. a physical therapist licensed pursuant to the provisions of Chapter 61, Article 12 NMSA 1978;
K. an occupational therapist licensed pursuant to the provisions of Chapter 61, Article 12A NMSA 1978;
L. a doctor of oriental medicine licensed pursuant to the provisions of Chapter 61, Article 14A NMSA 1978;
M. a psychologist who is duly licensed or certified in the state where the service is rendered, holding a doctorate degree in psychology and having at least two years clinical experience in a recognized health setting, or who has met the standards of the national register of health services providers in psychology;
N. a certified nurse-midwife licensed by the board of nursing as a registered nurse and registered with the behavioral health services division of the human services department [of health] as a certified nurse-midwife; or
O. any person or facility that provides health-related services in the health care industry, as approved by the director."
Section 11. Section 59A-23-6 NMSA 1978 (being Laws 1983, Chapter 64, Section 1) is amended to read:
"59A-23-6. ALCOHOL DEPENDENCY COVERAGE.--
A. Each insurer that delivers or issues for delivery in this state a group health insurance policy shall offer and make available benefits for the necessary care and treatment of alcohol dependency. Such benefits shall:
(1) be subject to annual deductibles and coinsurance consistent with those imposed on other benefits within the same policy;
(2) provide no less than thirty days necessary care and treatment in an alcohol dependency treatment center and thirty outpatient visits for alcohol dependency treatment; and
(3) be offered for benefit periods of no more than one year and may be limited to a lifetime maximum of no less than two benefit periods. Such offer of benefits shall be subject to the rights of the group health insurance holder to reject the coverage or to select any alternative level of benefits if that right is offered by or negotiated with that insurer.
B. For purposes of this section, "alcohol dependency treatment center" means a facility that provides a program for the treatment of alcohol dependency pursuant to a written treatment plan approved and monitored by a physician or meeting the quality standards of [the substance abuse bureau of] the behavioral health services division of the [health and environment] human services department and which facility also:
(1) is affiliated with a hospital under a contractual agreement with an established system for patient referral;
(2) is accredited as such a facility by the joint commission on accreditation of hospitals; or
(3) meets at least the minimum standards adopted by the [substance abuse bureau pursuant to Section
43-3-4 NMSA 1978] behavioral health services division for treatment of alcoholism in regional treatment centers [as defined in Section 43-3-3 NMSA 1978].
C. This section applies to policies delivered or issued for delivery or renewed, extended or amended in this state on or after July 1, 1983 or upon expiration of a collective bargaining agreement applicable to a particular policyholder, whichever is later; provided that this section does not apply to blanket, short-term travel, accident-only, limited or specified disease, individual conversion policies or policies designed for issuance to persons eligible for coverage under Title [XVIII] 18 of the Social Security Act, known as medicare, or any other similar coverage under state or federal governmental plans. With respect to any policy forms approved by the [department of] insurance division of the public regulation commission prior to the effective date of this section, an insurer is authorized to comply with this section by the use of endorsements or riders, provided such endorsements or riders are approved by the [department of] insurance division as being in compliance with this section and applicable provisions of [Chapter 59 NMSA 1978] the Insurance Code.
D. If an organization offering group health benefits to its members makes more than one health insurance policy or nonprofit health care plan available to its members on a member option basis, the organization shall not require alcohol dependency coverage from one health insurer or health care plan without requiring the same level of alcohol dependency coverage for all other health insurance policies or health care plans that the organization makes available to its members."
Section 12. TEMPORARY PROVISION--TRANSFER OF PERSONNEL, PROPERTY, CONTRACTS AND REFERENCES IN LAW.--On July 1, 2007:
A. all personnel, appropriations, money, records, equipment, supplies and other property of the behavioral health services division of the department of health shall be transferred to the human services department; and
B. all contracts of the behavioral health services division of the department of health shall be binding and effective on the human services department.
Section 13. REPEAL.--Sections 9-7-6.1 and 9-7-6.2 NMSA 1978 (being Laws 1999, Chapter 270, Sections 1 and 2, as amended) are repealed.
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