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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 and the

scientific laboratory.

B. All references in the law to the public health

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

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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.--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, six divisions as follows:

(1) the income support division;

(2) the administrative services division;

(3) the medical assistance division;

(4) the child support enforcement division;

(5) the behavioral health services division;

and

(6) the information technology division.

B. All references in the law to the behavioral

health services division of the department of health or to the

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mental health division of the department of health in Sections

29-11-1 through 29-11-7 NMSA 1978 or to the department of

health in Sections 43-2-1.1 through 43-2-23 NMSA 1978 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:

"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

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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

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

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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

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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.--

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 shall regulate the establishment

and continuance of methadone clinics in New Mexico in

accordance with its powers and duties.

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B. In regulating methadone clinics, the human

services department 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 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 the

secretary's designee, the director of the behavioral health

services division of the human services department, the

secretary of children, youth and families or the secretary's

designee, the secretary of aging and long-term services or the

secretary's designee and the secretary of human services or

the secretary's designee. Initially, three members shall be

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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 chair and a vice chair.

C. The commission shall be primarily concerned

with those individuals with disabilities who have a condition

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:

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A. "aversive stimuli" means anything 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 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 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;

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(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 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;

H. "developmental disability" means a disability

of a person that is attributable to mental retardation,

cerebral palsy, autism or neurological dysfunction 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 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,

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the office of a licensed physician or a certified

psychologist, 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 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 that enable the person to cope more

effectively with the demands of the person's self and

environment and to raise the level of 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

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bodily harm to 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 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 substantial disorder of

a person's emotional processes, thought or cognition 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

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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:

(a) modification or control of

thoughts, feelings, actions or behavior rather than the

treatment of a known and diagnosed physical disease of the

brain;

(b) treatment of abnormal brain

function or normal brain tissue in order to control thoughts,

feelings, actions or behavior; or

(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

client resides on the premises; and

T. "treatment" means any effort to accomplish a

significant change in the mental or emotional condition or

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behavior of the client."

Section 10. Section 43-3-10 NMSA 1978 (being Laws 1985,

Chapter 185, Section 3, as amended) is amended to read:

"43-3-10. DEFINITIONS.--As used in Chapter 43, Article

3 NMSA 1978:

A. "board" means the board of county commissioners

of a county;

B. "department" means the human services

department;

C. "DWI program" means a community program

specifically designed to provide treatment, aftercare or

prevention of or education regarding driving while under the

influence of alcohol or drugs;

D. "incarceration and treatment facility" means a

minimum security detention facility that provides a DWI

program;

E. "planning council" means a county DWI planning

council;

F. "screening program" means a program that

provides screening or examination by alcoholism treatment

professionals of persons charged with or convicted of driving

while intoxicated or other offenses to determine whether the

person is:

(1) physically dependent on alcohol and thus

suffering from the disease of alcoholism;

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(2) an alcohol abuser who has not yet

developed the alcoholism disease syndrome but has an

entrenched pattern of pathological use of alcohol and social

or occupational impairment in function from alcohol abuse; or

(3) neither an alcoholic nor an alcohol

abuser such that alcoholism treatment is not necessary; and

that provides referral or recommendation of such persons to

the most appropriate treatment; and

G. "statewide substance abuse services plan" means

the comprehensive plan for a statewide services network

developed by the department that documents the extent of New

Mexico's substance abuse problem and statewide needs for

prevention, screening, detoxification, short-term and long-

term rehabilitation, outpatient programs and DWI programs.

The plan shall be based on the continuum of care concept of a

comprehensive prevention and treatment system."

Section 11. 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;

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(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 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;

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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 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 12. 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;

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(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 behavioral health

services division of the 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 behavioral health services division for

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treatment of alcoholism in regional treatment centers.

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 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 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 insurance division as being in compliance

with this section and applicable provisions of 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 13. 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 14. 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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