HB 89

Page 1

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.--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

HB 89

Page 2

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

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 humans in

HB 89

Page 3

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 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 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 or the bodies of

HB 89

Page 4

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 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

HB 89

Page 5

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

HB 89

Page 6

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 humans or other animals;

or

(3) intended to affect the structure or a

function of the human body 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 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

HB 89

Page 7

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, 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

HB 89

Page 8

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

HB 89

Page 9

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

HB 89

Page 10

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

HB 89

Page 11

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",

HB 89

Page 12

"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" 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 the

person's personal care or the person's inability to manage the

person's estate or financial affairs or both;

D. "guardian" is as defined in Section 45-1-201

NMSA 1978;

HB 89

Page 13

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 the person is unable to manage the person's personal

affairs or the person is unable to manage the person's estate

or financial affairs or both;

G. "inability to manage 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 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

HB 89

Page 14

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

HB 89

Page 15

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:

HB 89

Page 16

"59A-22-32. FREEDOM OF CHOICE OF HOSPITAL AND

PRACTITIONER.--

A. Within the area and limits of coverage offered

an insured and selected by the insured in the application for

insurance, the right of a person to exercise full freedom of

choice in the selection of a hospital for hospital care or of

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 an illness or injury within 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 a claim

thereunder. 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,

HB 89

Page 17

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

a political subdivision of the state or 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

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;

HB 89

Page 18

(3) "optometrist" means a person holding a

license provided for in the Optometry Act;

(4) "podiatrist" means 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;

(7) "certified nurse-midwife" means 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;

(8) "registered lay midwife" means 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

(9) "registered nurse in expanded practice"

means a person licensed by the board of nursing as a

registered nurse approved for expanded practice pursuant to

HB 89

Page 19

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

and physician assistants 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."

HB 89

Page 20