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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
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the mental health division of the department of health in
Section 29-11-3 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:
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"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
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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.--
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
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establishment and continuance of methadone clinics in New
Mexico in accordance with its powers and duties.
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
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long-term services or the secretary's designee and the
secretary of human services or 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 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,
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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 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:
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(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 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
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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, 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
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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 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
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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:
(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,
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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
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
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while intoxicated or other offenses to determine whether the
person is:
(1) physically dependent on alcohol and thus
suffering from the disease of alcoholism;
(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
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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 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;
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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 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
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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 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;
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(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
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
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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.