HOUSE BILL 89
48th legislature - STATE OF NEW MEXICO - second session, 2008
INTRODUCED BY
Nathan P. Cote
AN ACT
RELATING TO HEALTH CARE; UPDATING CERTAIN SECTIONS OF LAW TO INCLUDE A PHYSICIAN ASSISTANT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 24-27-1 NMSA 1978 (being Laws 2005, Chapter 43, Section 1) is amended to read:
"24-27-1. SHORT TITLE.--[This act] Chapter 24, Article 27 NMSA 1978 may be cited as the "Umbilical Cord Blood Banking Act"."
Section 2. Section 24-27-3 NMSA 1978 (being Laws 2005, Chapter 43, Section 3) is amended to read:
"24-27-3. DEFINITIONS.--As used in the Umbilical Cord Blood Banking Act:
A. "health care facility" means an institution providing health care services, including a hospital, clinic or other inpatient center, outpatient facility or diagnostic or treatment center, that is licensed by the department of health;
B. "health care provider" means a person who is licensed, certified or otherwise authorized by law to provide or render health care services to pregnant women in New Mexico in the ordinary course of business or practice of a profession, but is limited to a medical physician, osteopathic physician, doctor of oriental medicine, physician assistant, certified nurse practitioner and certified nurse-midwife; and
C. "umbilical cord blood" means the blood that remains in the umbilical cord and placenta after the birth of a newborn child."
Section 3. Section 26-1-2 NMSA 1978 (being Laws 1967, Chapter 23, Section 2, as amended) is amended to read:
"26-1-2. DEFINITIONS.--As used in the New Mexico Drug, Device and Cosmetic Act:
A. "board" means the board of pharmacy or its duly authorized agent;
B. "person" includes an individual, partnership, corporation, association, institution or establishment;
C. "biological product" means a virus, therapeutic serum, toxin, antitoxin or analogous product applicable to the prevention, treatment or cure of diseases or injuries of [man] humans and domestic animals and, as used within the meaning of this definition:
(1) a "virus" is interpreted to be a product containing the minute living cause of an infectious disease and includes filterable viruses, bacteria, rickettsia, fungi and protozoa;
(2) a "therapeutic serum" is a product obtained from blood by removing the clot or clot components and the blood cells;
(3) a "toxin" is a product containing a soluble substance poisonous to laboratory animals or [man] humans in doses of one milliliter or less of the product and having the property, following the injection of nonfatal doses into an animal, or causing to be produced therein another soluble substance that specifically neutralizes the poisonous substance and that is demonstrable in the serum of the animal thus immunized; and
(4) an "antitoxin" is a product containing the soluble substance in serum or other body fluid of an immunized animal that specifically neutralizes the toxin against which the animal is immune;
D. "controlled substance" means a drug, substance or immediate precursor enumerated in Schedules I through V of the Controlled Substances Act;
E. "drug" means articles:
(1) recognized in an official compendium;
(2) intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease in [man] humans or other animals and includes the domestic animal biological products regulated under the federal Virus-Serum-Toxin Act, 37 Stat 832-833, 21 U.S.C. 151-158, and the biological products applicable to [man] humans regulated under Federal 58 Stat 690, as amended, 42 U.S.C. 216, Section 351, 58 Stat 702, as amended, and 42 U.S.C. 262;
(3) other than food that affect the structure or any function of the human body [of man] or the bodies of other animals; and
(4) intended for use as a component of Paragraph (1), (2) or (3) of this subsection, but does not include devices or their component parts or accessories;
F. "dangerous drug" means a drug, other than a controlled substance enumerated in Schedule I of the Controlled Substances Act, that because of a potentiality for harmful effect or the method of its use or the collateral measures necessary to its use is not safe except under the supervision of a practitioner licensed by law to direct the use of such drug and hence for which adequate directions for use cannot be prepared. "Adequate directions for use" means directions under which the [layman] layperson can use a drug or device safely and for the purposes for which it is intended. A drug shall be dispensed only upon the prescription of a practitioner licensed by law to administer or prescribe the drug if it:
(1) is a habit-forming drug and contains any quantity of a narcotic or hypnotic substance or a chemical derivative of such substance that has been found under the federal act and the board to be habit forming;
(2) because of its toxicity or other potential for harmful effect or the method of its use or the collateral measures necessary to its use is not safe for use except under the supervision of a practitioner licensed by law to administer or prescribe the drug;
(3) is limited by an approved application by Section 505 of the federal act to the use under the professional supervision of a practitioner licensed by law to administer or prescribe the drug;
(4) bears the legend: "Caution: federal law prohibits dispensing without prescription.";
(5) bears the legend: "Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian."; or
(6) bears the legend "RX only";
G. "counterfeit drug" means a drug that is deliberately and fraudulently mislabeled with respect to its identity, ingredients or sources. Types of such pharmaceutical counterfeits may include:
(1) "identical copies", which are counterfeits made with the same ingredients, formulas and packaging as the originals but not made by the original manufacturer;
(2) "look-alikes", which are products that feature high-quality packaging and convincing appearances but contain little or no active ingredients and may contain harmful substances;
(3) "rejects", which are drugs that have been rejected by the manufacturer for not meeting quality standards; and
(4) "relabels", which are drugs that have passed their expiration dates or have been distributed by unauthorized foreign sources and may include placebos created for late-phase clinical trials;
H. "device", except when used in Subsection P of this section and in Subsection G of Section 26-1-3, Subsection L and Paragraph (4) of Subsection A of Section 26-1-11 and Subsection C of Section 26-1-24 NMSA 1978, means an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent or other similar or related article, including any component, part or accessory, that is:
(1) recognized in an official compendium;
(2) intended for use in the diagnosis of disease or other conditions or in the cure, mitigation, treatment or prevention of disease in [man] humans or other animals; or
(3) intended to affect the structure or a function of the human body [of man] or the bodies of other animals and that does not achieve any of its principal intended purposes through chemical action within or on the human body [of man] or the bodies of other animals and that is not dependent on being metabolized for achievement of any of its principal intended purposes;
I. "prescription" means an order given individually for the person for whom prescribed, either directly from a licensed practitioner or the practitioner's agent to the pharmacist, including by means of electronic transmission, or indirectly by means of a written order signed by the prescriber, and bearing the name and address of the prescriber, [his] the prescriber's license classification, the name and address of the patient, the name and quantity of the drug prescribed, directions for use and the date of issue;
J. "practitioner" means a physician, doctor of oriental medicine, dentist, veterinarian, certified nurse practitioner, clinical nurse specialist, pharmacist, pharmacist clinician, certified nurse-midwife, physician assistant, prescribing psychologist or other person licensed or certified to prescribe and administer drugs that are subject to the New Mexico Drug, Device and Cosmetic Act;
K. "cosmetic" means:
(1) articles intended to be rubbed, poured, sprinkled or sprayed on, introduced into or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness or altering the appearance; and
(2) articles intended for use as a component of any articles enumerated in Paragraph (1) of this subsection, except that the term shall not include soap;
L. "official compendium" means the official United States pharmacopoeia national formulary or the official homeopathic pharmacopoeia of the United States or any supplement to either of them;
M. "label" means a display of written, printed or graphic matter upon the immediate container of an article. A requirement made by or under the authority of the New Mexico Drug, Device and Cosmetic Act that any word, statement or other information appear on the label shall not be considered to be complied with unless the word, statement or other information also appears on the outside container or wrapper, if any, of the retail package of the article or is easily legible through the outside container or wrapper;
N. "immediate container" does not include package liners;
O. "labeling" means all labels and other written, printed or graphic matter:
(1) on an article or its containers or wrappers; or
(2) accompanying an article;
P. "misbranded" means a label to an article that is misleading. In determining whether the label is misleading, there shall be taken into account, among other things, not only representations made or suggested by statement, word, design, device or any combination of the foregoing, but also the extent to which the label fails to reveal facts material in the light of such representations or material with respect to consequences that may result from the use of the article to which the label relates under the conditions of use prescribed in the label or under such conditions of use as are customary or usual;
Q. "advertisement" means all representations disseminated in any manner or by any means, other than by labeling, for the purpose of inducing, or that are likely to induce, directly or indirectly, the purchase of drugs, devices or cosmetics;
R. "antiseptic", when used in the labeling or advertisement of an antiseptic, shall be considered to be a representation that it is a germicide, except in the case of a drug purporting to be or represented as an antiseptic for inhibitory use as a wet dressing, ointment, dusting powder or such other use as involves prolonged contact with the body;
S. "new drug" means a drug:
(1) the composition of which is such that the drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and efficacy of drugs, as safe and effective for use under the conditions prescribed, recommended or suggested in the labeling thereof; or
(2) the composition of which is such that the drug, as a result of investigation to determine its safety and efficacy for use under such conditions, has become so recognized, but that has not, otherwise than in such investigations, been used to a material extent or for a material time under such conditions;
T. "contaminated with filth" applies to a drug, device or cosmetic not securely protected from dirt, dust and, as far as may be necessary by all reasonable means, from all foreign or injurious contaminations, or a drug, device or cosmetic found to contain dirt, dust, foreign or injurious contamination or infestation;
U. "selling of drugs, devices or cosmetics" shall be considered to include the manufacture, production, processing, packing, exposure, offer, possession and holding of any such article for sale and the sale and the supplying or applying of any such article in the conduct of a drug or cosmetic establishment;
V. "color additive" means a material that:
(1) is a dye, pigment or other substance made by a process of synthesis or similar artifice or extracted, isolated or otherwise derived, with or without intermediate or final change of identity, from a vegetable, mineral, animal or other source; or
(2) when added or applied to a drug or cosmetic or to the human body or a part thereof, is capable, alone or through reaction with other substances, of imparting color thereto; except that such term does not include any material that has been or hereafter is exempted under the federal act;
W. "federal act" means the Federal Food, Drug and Cosmetic Act;
X. "restricted device" means a device for which the sale, distribution or use is lawful only upon the written or oral authorization of a practitioner licensed by law to administer, prescribe or use the device and for which the federal food and drug administration requires special training or skills of the practitioner to use or prescribe. This definition does not include custom devices defined in the federal act and exempt from performance standards or premarket approval requirements under Section 520(b) of the federal act;
Y. "prescription device" means a device that, because of its potential for harm, the method of its use or the collateral measures necessary to its use, is not safe except under the supervision of a practitioner licensed in this state to direct the use of such device and for which "adequate directions for use" cannot be prepared, but that bears the label: "Caution: federal law restricts this device to sale by or on the order of a __________", the blank to be filled with the word "physician", "physician assistant", "doctor of oriental medicine", "dentist", "veterinarian", "certified nurse practitioner", "clinical nurse specialist", "pharmacist", "pharmacist clinician" or "certified nurse-midwife" or with the descriptive designation of any other practitioner licensed in this state to use or order the use of the device;
Z. "valid practitioner-patient relationship" means a professional relationship, as defined by the practitioner's licensing board, between the practitioner and the patient; and
AA. "pedigree" means the recorded history of a drug."
Section 4. Section 45-5-101 NMSA 1978 (being Laws 1975, Chapter 257, Section 5-101, as amended) is amended to read:
"45-5-101. DEFINITIONS AND USE OF TERMS.--Unless otherwise apparent from the context, in Chapter 45, Article 5 NMSA 1978:
A. "conservator" is as defined in Section 45-1-201 NMSA 1978;
B. "court" [for purposes of Sections 45-5-101 through 45-5-502 NMSA 1978] means the district court or the children's or family division of the district court where such jurisdiction is conferred by the Children's Code;
C. "functional impairment" means an impairment that is measured by a person's inability to manage [his] the person's personal care or the person's inability to manage [his] the person's estate or financial affairs or both;
D. "guardian" is as defined in Section 45-1-201 NMSA 1978;
E. "guardian ad litem" is as defined in Section
45-1-201 NMSA 1978;
F. "incapacitated person" means any person who demonstrates over time either partial or complete functional impairment by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that [he] the person is unable to manage [his] the person's personal affairs or [he] the person is unable to manage [his] the person's estate or financial affairs or both;
G. "inability to manage [his] the person's personal care" means the inability, as evidenced by recent behavior, to meet one's needs for medical care, nutrition, clothing, shelter, hygiene or safety so that physical injury, illness or disease has occurred or is likely to occur in the near future;
H. "inability to manage [his] the person's estate or financial affairs or both" means gross mismanagement, as evidenced by recent behavior, of one's income and resources or medical inability to manage one's income and resources that has led or is likely in the near future to lead to financial vulnerability;
I. "interested person" means any person who has an interest in the welfare of the person to be protected under this article;
J. "least restrictive form of intervention" means that the guardianship or conservatorship imposed on the incapacitated person or minor ward represents only those limitations necessary to provide the needed care and rehabilitative services and that the incapacitated person or minor ward shall enjoy the greatest amount of personal freedom and civil liberties;
K. "letters" is as defined in Section 45-1-201 NMSA 1978;
L. "limited conservator" means any person who is qualified to manage the estate and financial affairs of an incapacitated person pursuant to a court appointment in a limited conservatorship;
M. "limited conservatorship" means that an incapacitated person is subject to a conservator's exercise of some but not all of the powers enumerated in Sections
45-5-424 and 45-5-425 NMSA 1978;
N. "limited guardian" means any person who is qualified to manage the care, custody and control of an incapacitated person pursuant to a court appointment of a limited guardianship;
O. "limited guardianship" means that an incapacitated person is subject to a guardian's exercise of some but not all of the powers enumerated in Section 45-5-312 NMSA 1978;
P. "minor" is as defined in Section 45-1-201 NMSA 1978;
Q. "minor ward" means a minor for whom a guardian or conservator has been appointed solely because of minority;
R. "protective proceeding" means a conservatorship proceeding under Section 45-5-401 NMSA 1978;
S. "protected person" means a minor or other person for whom a conservator has been appointed or other protective order has been made;
T. "qualified health care professional" means a physician, psychologist, physician assistant, nurse practitioner or other health care practitioner whose training and expertise aid in the assessment of functional impairment;
U. "ward" means a person for whom a guardian has been appointed; and
V. "visitor" means a person who is an appointee of the court who has no personal interest in the proceeding and who has been trained or has the expertise to appropriately evaluate the needs of the person who is allegedly incapacitated. A "visitor" may include, but is not limited to, a psychologist, social worker, developmental incapacity professional, physical and occupational therapist, an educator and a rehabilitation worker."
Section 5. Section 59A-22-32 NMSA 1978 (being Laws 1984, Chapter 127, Section 454, as amended) is amended to read:
"59A-22-32. FREEDOM OF CHOICE OF HOSPITAL AND PRACTITIONER.--
A. Within the area and limits of coverage offered an insured and selected by [him] the insured in the application for insurance, the right of [any] a person to exercise full freedom of choice in the selection of [any] a hospital for hospital care or of [any] a practitioner of the healing arts or optometrist, psychologist, podiatrist, physician assistant, certified nurse-midwife, registered lay midwife or registered nurse in expanded practice, as defined in Subsection B of this section, for treatment of [any] an illness or injury within [his] that person's scope of practice shall not be restricted under any new policy of health insurance, contract or health care plan issued after June 30, 1967 in this state or in the processing of [any] a claim thereunder. [Any] A person insured or claiming benefits under any such health insurance policy, contract or health care plan providing within its coverage for payment of service benefits or indemnity for hospital care or treatment of persons for the cure or correction of any physical or mental condition shall be deemed to have complied with the requirements of the policy, contract or health care plan as to submission of proof of loss upon submitting written proof supported by the certificate of any hospital currently licensed by the department of health or any practitioner of the healing arts or optometrist, psychologist, podiatrist, physician assistant, certified nurse-midwife, registered lay midwife or registered nurse in expanded practice.
B. As used in this section:
(1) "hospital care" means hospital service provided through a hospital that is maintained by the state or [any] a political subdivision of the state or [any] a place that is currently licensed as a hospital by the department of health and has accommodations for resident bed patients, a licensed professional registered nurse always on duty or call, a laboratory and an operating room where surgical operations are performed, but "hospital care" does not include a convalescent or nursing or rest home;
(2) "practitioner of the healing arts" means [any] a person holding a license or certificate authorizing the licensee to offer or undertake to diagnose, treat, operate on or prescribe for any human pain, injury, disease, deformity or physical or mental condition pursuant to:
(a) the Chiropractic Physician Practice Act;
(b) the Dental Health Care Act;
(c) the Medical Practice Act;
(d) Chapter 61, Article 10 NMSA 1978; and
(e) the Acupuncture and Oriental Medicine Practice Act;
(3) "optometrist" means [any] a person holding a license provided for in the Optometry Act;
(4) "podiatrist" means [any] a person holding a license provided for in the Podiatry Act;
(5) "psychologist" means a person who is duly licensed or certified in the state where the service is rendered and has a doctoral degree in psychology and has had at least two years of clinical experience in a recognized health setting or has met the standards of the national register of health service providers in psychology;
(6) "physician assistant" means a person who is licensed by the New Mexico medical board to practice as a physician assistant and who provides services to patients under the supervision and direction of a licensed physician;
[(6)] (7) "certified nurse-midwife" means [any] a person licensed by the board of nursing as a registered nurse and who is registered with the public health division of the department of health as a certified nurse-midwife;
[(7)] (8) "registered lay midwife" means [any] a person who practices lay midwifery and is registered as a registered lay midwife by the public health division of the department of health; and
[(8)] (9) "registered nurse in expanded practice" means [any] a person licensed by the board of nursing as a registered nurse approved for expanded practice pursuant to the Nursing Practice Act as a certified nurse practitioner, certified registered nurse anesthetist, certified clinical nurse specialist in psychiatric mental health nursing or clinical nurse specialist in private practice and who has a master's degree or doctorate in a defined clinical nursing speciality and is certified by a national nursing organization.
C. This section shall apply to any such policy that is delivered or issued for delivery in this state on or after July 1, 1979 and to any existing group policy or plan on its anniversary or renewal date after June 30, 1979 or at expiration of the applicable collective bargaining contract, if any, whichever is later."
Section 6. Section 59A-47-28.3 NMSA 1978 (being Laws 1998, Chapter 39, Section 2) is amended to read:
"59A-47-28.3. PROVIDER DISCRIMINATION PROHIBITED.--All individual and group subscriber contracts delivered or issued for delivery in New Mexico that, on a prepaid, service or indemnity basis, or all of them, provide for treatment of persons for the prevention, cure or correction of an illness or physical or mental condition shall include coverage for the services of a physician assistant and a certified nurse practitioner. Deductibles, limits of coverage or other terms and conditions of coverage for certified nurse practitioners shall not differ substantially from coverage for the same or similar services provided by other practitioners. Nothing in this section shall restrict a health care plan from including in the terms of its coverage any benefit differences based on differences in the scope of practice of health care practitioners."
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