SENATE BILL 269
48th legislature - STATE OF NEW MEXICO - second session, 2008
INTRODUCED BY
Steve Komadina
AN ACT
RELATING TO SLEEP THERAPY; CREATING THE POLYSOMNOGRAPHY PRACTICE ACT; PROVIDING FOR LICENSING; CREATING THE POLYSOMNOGRAPHY PRACTICE BOARD; CREATING THE POLYSOMNOGRAPHY FUND; ENACTING CRIMINAL AND CIVIL PENALTIES; MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Polysomnography Practice Act".
Section 2. DEFINITIONS.--As used in the Polysomnography Practice Act:
A. "board" means the polysomnography practice board;
B. "department" means the regulation and licensing department;
C. "direct supervision" means that the polysomnographic technologist providing supervision shall be present in the area where the polysomnographic procedure is being performed and immediately available to furnish assistance and direction throughout the performance of the procedure;
D. "fund" means the polysomnography fund;
E. "general supervision" means that the polysomnographic procedure is provided under a physician's overall direction and control, but the physician's presence is not required during the performance of the procedure;
F. "license" means an authorization issued by the board that permits a person to engage in the practice of polysomnography in the state;
G. "licensee" means a person licensed by the board to engage in the practice of polysomnography;
H. "polysomnographic student" means a person who is enrolled in an educational program that is accredited by the commission on accreditation of allied health education programs, as provided in Section 4 of the Polysomnography Practice Act, and who may provide sleep-related services under the direct supervision of a polysomnographic technologist as a part of the person's educational program;
I. "polysomnographic technician" means a person who has graduated from an accredited educational program described in Section 4 of the Polysomnography Practice Act but has not yet passed the national certifying examination given by the board of registered polysomnographic technologists, who has obtained a temporary permit from the board and who may provide sleep-related services under the general supervision of a licensed physician;
J. "polysomnographic technologist" means a person who is credentialed by the board of registered polysomnographic technologists and is licensed by the board to engage in the practice of polysomnography under the general supervision of a licensed physician;
K. "polysomnographic trainee" means a person who is enrolled in an accredited sleep technologist educational program that is accredited by the American academy of sleep medicine and who may provide sleep-related services under the direct supervision of a polysomnographic technologist as a part of the person's educational program;
L. "practice of polysomnography" means the performance of diagnostic and therapeutic tasks, under the general supervision of a licensed physician, including:
(1) monitoring and recording physiologic activity and data during the evaluation or treatment of sleep-related disorders, including sleep-related respiratory disturbances, by applying appropriate techniques, equipment and procedures, including:
(a) continuous or bi-level positive airway pressure titration on patients using a nasal or oral or a nasal and oral mask or appliance that does not extend into the trachea or attach to an artificial airway, including the fitting and selection of a mask or appliance and the selection and implementation of treatment settings;
(b) supplemental low-flow oxygen therapy that is less than ten liters per minute using nasal cannula or continuous or bi-level positive airway pressure during a polysomnogram;
(c) capnography during a polysomnogram;
(d) cardiopulmonary resuscitation;
(e) pulse oximetry;
(f) gastroesophageal pH monitoring;
(g) esophageal pressure monitoring;
(h) sleep staging, including surface electroencephalography, surface electrooculography and surface submental electromyography;
(i) surface electromyography;
(j) electrocardiography;
(k) respiratory effort monitoring, including thoracic and abdominal movement;
(l) respiratory plethysmography;
(m) arterial tonometry and additional measures of autonomic nervous system tone;
(n) snore monitoring;
(o) audio or video monitoring;
(p) body movement monitoring;
(q) nocturnal penile tumescence monitoring;
(r) nasal and oral airflow monitoring;
(s) body temperature monitoring; and
(t) use of additional sleep-related diagnostic technologies as determined by a rule adopted by the board;
(2) observing and monitoring physical signs and symptoms, general behavior and general physical response to polysomnographic evaluation or treatment and determining whether initiation, modification or discontinuation of a treatment regimen is warranted;
(3) analyzing and scoring data collected during the monitoring described in Paragraphs (1) and (2) of this subsection for the purpose of assisting a licensed physician in the diagnosis and treatment of sleep and wake disorders that result from developmental defects, the aging process, physical injury, disease or actual or anticipated somatic dysfunction;
(4) implementing a written or verbal order from a licensed physician that requires the practice of polysomnography;
(5) educating a patient regarding the treatment regimen that assists that patient in improving the patient's sleep; and
(6) initiating and monitoring treatment, under the orders of a licensed physician, for sleep-related breathing disorders by providing continuous positive airway pressure and bi-level positive airway pressure devices and accessories, including masks that do not extend into the trachea or attach to an artificial airway, to a patient for home use, together with educating the patient about the treatment and managing the treatment;
M. "sleep-related services" means acts performed by polysomnographic technicians, polysomnographic trainees, polysomnographic students and other persons permitted to perform these services under the Polysomnography Practice Act, in a setting described in Subsection F of Section 3 of the Polysomnography Practice Act, that would be considered the practice of polysomnography if performed by a polysomnographic technologist; and
N. "superintendent" means the superintendent of regulation and licensing.
Section 3. LICENSE REQUIRED--EXCEPTIONS--PRACTICE LIMITATIONS--APPLICABILITY.--
A. On and after July 1, 2011, a person who is engaged in the practice of polysomnography must have a valid polysomnographic technologist license issued by the board. It shall be unlawful for a person to engage in the practice of polysomnography after that date unless the person has a valid polysomnographic technologist license issued by the board.
B. Prior to July 1, 2011, any person who is engaged in the practice of polysomnography without being licensed under the Polysomnography Practice Act shall not be deemed to be in violation of that act.
C. The following classes of persons may provide sleep-related services without being licensed as a polysomnographic technologist:
(1) a polysomnographic technician under the general supervision of a licensed physician for a period of up to two years from the date of the person's graduation from one of the accredited programs described in Section 4 of the Polysomnography Practice Act; provided that the board may grant a one-time extension of up to one year beyond the original two-year period;
(2) a polysomnographic trainee who may provide sleep-related services under the direct supervision of a polysomnographic technologist as a part of the trainee's educational program while actively enrolled in an accredited sleep technologist educational program that is accredited by the American academy of sleep medicine;
(3) a polysomnographic student who may provide uncompensated sleep-related services under the direct supervision of a polysomnographic technologist as a part of the student's educational program while actively enrolled in a polysomnographic educational program that is accredited by the commission on accreditation of allied health education programs;
(4) a person credentialed in one of the health-related fields accepted by the board of registered polysomnographic technologists who may provide sleep-related services under the direct supervision of a polysomnographic technologist for a period of up to one year while obtaining the clinical experience necessary to be eligible to take the examination given by the board of registered polysomnographic technologists; and
(5) a respiratory care practitioner licensed under the Respiratory Care Act who may provide sleep-related services under the general supervision of a licensed physician if the licensed respiratory care practitioner is credentialed by the board of registered polysomnographic technologists. Respiratory care practitioners in this class are subject to disciplinary action pursuant to the Respiratory Care Act if they fail to adhere to the standards established in the Polysomnography Practice Act and rules adopted pursuant to that act.
D. Before providing any sleep-related services:
(1) a polysomnographic technician shall obtain a temporary permit from the board and when providing services shall wear a badge that appropriately identifies the person as a polysomnographic technician;
(2) a polysomnographic trainee shall give notice to the board that the trainee is enrolled in an accredited sleep technologist educational program accredited by the American academy of sleep medicine. When providing services, the trainee shall wear a badge that appropriately identifies the person as a polysomnographic trainee;
(3) a person who is obtaining clinical experience pursuant to Paragraph (4) of Subsection C of this section shall give notice to the board that the person is working under the direct supervision of a polysomnographic technologist in order to gain the experience to be eligible to take the examination given by the board of registered polysomnographic technologists. When providing services, the person shall wear a badge that appropriately identifies that the person is obtaining clinical experience; and
(4) a polysomnographic student shall wear a badge that appropriately identifies the person as a polysomnographic student.
E. A licensed dentist shall make or direct the making and use of any oral appliance used in the practice of polysomnography and shall evaluate the structures of a patient's oral and maxillofacial region for purposes of fitting the appliance.
F. The practice of polysomnography shall take place only in a hospital, a stand-alone sleep laboratory or sleep center or in a patient's home in accordance with a physician's order; provided that the scoring of data and the education of patients may take place in settings other than in a hospital, sleep laboratory, sleep center or patient's home.
G. The Polysomnography Practice Act does not apply to:
(1) diagnostic electroencephalograms conducted in accordance with the guidelines of the American clinical neurophysiology society;
(2) a person who is employed in the practice of polysomnography by a federal government facility or agency in New Mexico; or
(3) a person qualified as a member of a recognized profession, the practice of which requires a license or is regulated pursuant to the laws of New Mexico, who renders services within the scope of the person's license or other regulatory authority; provided that the person does not represent that the person is a polysomnographic technologist.
Section 4. EDUCATION--PROFESSIONAL QUALIFICATIONS.--
A. The board may issue a polysomnographic technologist license to a person if that person:
(1) is at least eighteen years of age;
(2) meets one of the following educational requirements:
(a) graduation from a polysomnographic educational program that is accredited by the commission on accreditation of allied health education programs;
(b) graduation from a respiratory care educational program that is accredited by the commission on accreditation of allied health education programs and completion of the curriculum for a polysomnography certificate established and accredited by the committee on accreditation for respiratory care of the commission on accreditation of allied health education programs;
(c) graduation from an electroneurodiagnostic technologist educational program with a polysomnographic technology track that is accredited by the commission on accreditation of allied health education programs; or
(d) successful completion of an accredited sleep technologist educational program that is accredited by the American academy of sleep medicine; provided, however, this optional requirement shall not be available after the date on which there are at least three polysomnographic technologist educational programs in New Mexico that have been accredited by the commission on accreditation of allied health education programs for at least the two years immediately preceding that date;
(3) has passed the national certifying examination given by the board of registered polysomnographic technologists or has passed a national certifying examination equivalent to the board of registered polysomnographic technologists' examination as determined by a rule adopted by the polysomnography practice board;
(4) has been credentialed by the board of registered polysomnographic technologists or by another national entity equivalent to the board of polysomnographic technologists as determined by rule adopted by the polysomnography practice board;
(5) has met any additional educational or clinical requirements established by the board pursuant to rule; and
(6) has met all other requirements of the Polysomnography Practice Act.
B. A person who is engaged in the practice of polysomnography on July 1, 2008 shall be eligible for a license under the Polysomnography Practice Act without meeting the educational requirement of Paragraph (2) of Subsection A of this section, provided that the person meets the requirements of Paragraphs (3) through (6) of Subsection A of this section.
C. The board may require a personal interview with an applicant to evaluate that person's qualifications for a license.
Section 5. APPLICATION.--
A. An applicant for a license shall:
(1) complete and submit an application on a form furnished by the board; and
(2) provide all of the information requested by the board.
B. An applicant shall submit a nonrefundable application fee with the application.
Section 6. LICENSE--CONTENTS--DISPLAY--FEES--RENEWAL.--
A. A license issued by the board shall contain the name of the person to whom it is issued, the address of the person, the date and number of the license and other information the board may require. The address contained on the license shall be the address where all correspondence and renewal forms from the board will be sent. Any person whose address changes shall, within thirty days of the change, notify the board of the address change. The most recent address contained in the board's records for each license holder is the address deemed sufficient for purposes of service of process.
B. A license holder who wishes to retire from the practice of polysomnography shall file with the board an affidavit, in a form to be furnished by the board, stating the date on which the person retired from practice and other information the board may require. If that person wishes to reenter the practice of polysomnography, the person shall meet requirements established by the board for license renewal.
C. A license holder shall display the license in the office or place in which the license holder practices in a location clearly visible to patients.
D. The board shall establish license and administrative fees, but no individual fee shall exceed one thousand dollars ($1,000).
E. The board shall review licenses for renewal annually, and all licenses to be renewed shall be renewed on July 1. Applicants for license renewal shall submit:
(1) a renewal application on a form provided by the board;
(2) a license renewal fee;
(3) proof that the applicant continues to be credentialed by the board of registered polysomnographic technologists; and
(4) proof of completion of continuing education requirements.
Section 7. BOARD--CREATION--ORGANIZATION--PER DIEM AND MILEAGE--REMOVAL.--
A. The "polysomnography practice board" is created and is administratively attached to the department.
B. The board shall have the following seven members, who are residents of New Mexico, appointed by the governor:
(1) three members who are credentialed by the board of registered polysomnographic technologists; provided that when the polysomnography practice board begins issuing licenses, this category of board members shall be three licensed polysomnographic technologists, with the then-sitting members in this category being given a reasonable amount of time to become licensed;
(2) one licensed physician who is certified in sleep medicine by a national certifying body recognized by the American academy of sleep medicine;
(3) one person who is the director of an American-academy-of-sleep-medicine-accredited sleep center;
(4) one licensed respiratory care practitioner who is also credentialed by the board of registered polysomnographic technologists who shall be required to become a licensed polysomnographic technologist within a reasonable amount of time; and
(5) one member of the public who is not economically or professionally associated with the health care field.
C. Term-length conditions for appointments to the board are:
(1) for initial appointments, two members each for four-year, three-year and two-year terms and one member for a one-year term;
(2) for regular appointments after the initial appointments, four-year terms;
(3) for a vacancy appointment, the balance of the term; and
(4) for any one member, no more than two terms, including an initial appointment term; provided that a member shall continue to serve on the board until a replacement is appointed.
D. The board shall elect annually a chairperson and other officers as the board determines to be necessary.
E. The board shall meet at least twice per calendar year and otherwise as often as necessary to conduct business, with four members constituting a quorum and meetings subject to the Open Meetings Act.
F. The department shall reimburse members of the board as nonsalaried public officers pursuant to the Per Diem and Mileage Act, and members shall receive no other compensation, perquisite or allowance for their service on the board.
G. The governor may remove from office a member of the board for neglect of duties required by the Polysomnography Practice Act, malfeasance in office, incompetence or unprofessional conduct.
Section 8. BOARD--POWERS AND DUTIES.--
A. The board shall have powers regarding licensing of polysomnographic technologists, temporary permitting of polysomnographic technicians, approval of polysomnography curricula, approval of degree programs in polysomnography and any other matters that are necessary to ensure the training and licensing of competent polysomnographic technologists.
B. The board shall hold hearings and adopt rules regarding:
(1) the licensing of polysomnographic technologists, the practice of polysomnography and the minimum qualifications and hours of clinical experience and standards of care required for being licensed as a polysomnographic technologist;
(2) criteria for continuing education requirements;
(3) the manner in which records of examinations and treatments shall be kept and maintained;
(4) professional conduct, ethics and responsibility;
(5) disciplinary actions, including the denial, suspension or revocation of or the imposition of restrictions or conditions on a license, and the circumstances that require disciplinary action;
(6) a means to provide information to all polysomnographic technologists licensed in the state;
(7) the inspection of the business premises of a licensee when the board determines that an inspection is necessary;
(8) the investigation of complaints against licensees or persons holding themselves out as engaging in the practice of polysomnography in the state;
(9) the publication of information for the public about licensees and the practice of polysomnography in the state;
(10) an orderly process for reinstatement of a license;
(11) criteria for acceptance of polysomnography credentials or licenses issued in other jurisdictions;
(12) criteria for advertising or promotional materials; and
(13) any matter necessary to implement the Polysomnography Practice Act.
Section 9. POLYSOMNOGRAPHY FUND CREATED--USE--APPROPRIATION.--
A. The "polysomnography fund" is created in the state treasury.
B. All fees collected pursuant to the provisions of the Polysomnography Practice Act shall be deposited with the state treasurer. The state treasurer shall place the money to the credit of the fund.
C. Money in the fund is appropriated to the department to carry out the provisions of the Polysomnography Practice Act. Any unexpended or unencumbered balance remaining in the fund at the end of a fiscal year shall not revert to the general fund. Expenditures shall be made from the fund on warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the superintendent.
Section 10. ADMINISTRATIVE HEARINGS.--Administrative hearings shall be conducted pursuant to the Uniform Licensing Act.
Section 11. OFFENSES--CRIMINAL PENALTIES.--A person who engages in the practice of polysomnography without a license is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.
Section 12. VIOLATION--CIVIL PENALTIES.--The superintendent may fine any person who intentionally violates the provisions of the Polysomnography Practice Act a sum up to one thousand dollars ($1,000) or may suspend or revoke a licensee's authority to engage in the practice of polysomnography in New Mexico.
Section 13. TERMINATION OF AGENCY LIFE--DELAYED REPEAL.--The polysomnography practice board is terminated on July 1, 2015 pursuant to the Sunset Act. The board shall continue to operate according to the Polysomnography Practice Act until July 1, 2016. Effective July 1, 2016, the Polysomnography Practice Act is repealed.
Section 14. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2008.
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