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AN ACT

RELATING TO PROFESSIONAL LICENSING; CREATING THE

POLYSOMNOGRAPHY PRACTICE ACT; PROVIDING LICENSING

REQUIREMENTS FOR POLYSOMNOGRAPHIC TECHNOLOGISTS; GIVING

DUTIES TO THE NEW MEXICO MEDICAL BOARD; CREATING CRIMINAL AND

CIVIL PENALTIES; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of the Medical Practice Act is

enacted to read:

"SHORT TITLE.--Sections 1 through 10 of this act may be

cited as the "Polysomnography Practice Act"."

Section 2. A new section of the Medical Practice Act is

enacted to read:

"DEFINITIONS.--As used in the Polysomnography Practice

Act:

A. "board" means the New Mexico medical board;

B. "committee" means the polysomnography practice

advisory committee;

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;

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D. "general supervision" means that the

polysomnographic procedure is provided under a physician's

direction and control, but the physician's presence is not

required during the performance of the procedure;

E. "license" means an authorization issued by the

board that permits a person to engage in the practice of

polysomnography in the state;

F. "licensed provider" means a licensed physician,

licensed physician assistant, licensed certified nurse

practitioner or licensed psychologist;

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 5 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 5 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

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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

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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;

(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

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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

provider 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 provider 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,

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under the orders of a licensed provider, 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; and

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 D of Section 4 of

the Polysomnography Practice Act, that would be considered

the practice of polysomnography if performed by a

polysomnographic technologist."

Section 3. A new section of the Medical Practice Act is

enacted to read:

"LICENSE REQUIRED--EXCEPTIONS--PRACTICE LIMITATIONS--

APPLICABILITY.--

A. On and after July 1, 2010, 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

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board.

B. Prior to July 1, 2010, 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."

Section 4. A new section of the Medical Practice Act is

enacted to read:

"EXEMPTIONS.--

A. 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 no more than

two years from the date of the person's graduation from one

of the accredited programs described in Section 5 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

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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; and

(4) a person, other than a respiratory care

practitioner licensed under the Respiratory Care Act,

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.

B. 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

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identifies the person as a polysomnographic trainee;

(3) a person who is obtaining clinical

experience pursuant to Paragraph (4) of Subsection A 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.

C. 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.

D. 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

licensed provider'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.

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E. The Polysomnography Practice Act shall not

apply to:

(1) a physician licensed under the Medical

Practice Act;

(2) diagnostic electroencephalograms

conducted in accordance with the guidelines of the American

clinical neurophysiology society;

(3) a person who is employed in the practice

of polysomnography by a federal government facility or agency

in New Mexico; or

(4) 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 5. A new section of the Medical Practice Act is

enacted to read:

"REQUIREMENTS FOR LICENSING.--

A. The board shall grant a license to engage in

the practice of polysomnography to a person who has submitted

to the board:

(1) a completed application for licensing on

the form provided by the board;

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(2) required documentation as determined by

the board;

(3) the required fees;

(4) an affidavit stating that the applicant

has not been found guilty of unprofessional conduct or

incompetence;

(5) satisfactory documentation of either:

(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;

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;

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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; and

(6) satisfactory documentation of having:

(a) passed the national certifying

examination given by the board of registered polysomnographic

technologists or having passed a national certifying

examination equivalent to the board of registered

polysomnographic technologists' examination as determined by

a rule adopted by the New Mexico medical board;

(b) 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 New Mexico

medical board;

clinical requirements established by the board pursuant to

rule; and

(d) 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

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license under the Polysomnography Practice Act without

meeting the educational requirement of Paragraph (5) of

Subsection A of this section, provided that the person meets

the requirements of Paragraph (6) of Subsection A of this

section.

C. The board may require:

(1) a personal interview with an applicant

to evaluate that person's qualifications for a license; and

(2) fingerprints and other information

necessary for a state and national criminal background

check."

Section 6. A new section of the Medical Practice Act is

enacted to read:

"LICENSE RENEWAL.--

A. A licensee shall renew the licensee's

polysomnographic technologist's license biennially by

submitting prior to the date established by the board:

(1) the completed application for license

renewal on the form provided by the board; and

(2) the required fee for biennial license

renewal.

B. The board may require proof of continuing

education or other proof of competence as a requirement for

renewal.

C. A sixty-day grace period shall be allowed a

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licensee after the end of the licensing period, during which

time the license may be renewed by submitting:

(1) the completed application for license

renewal on the form provided by the board;

(2) the required fee for biennial license

renewal; and

(3) the required late fee.

D. A polysomnographic technologist's license not

renewed at the end of the grace period shall be considered

expired, and the licensee shall not be eligible to practice

within the state. For reinstatement of an expired license

within one year of the date of renewal, the board shall

establish requirements or fees that are in addition to the

fee for biennial license renewal and may require the former

licensee to reapply as a new applicant."

Section 7. A new section of the Medical Practice Act is

enacted to read:

"LICENSE--CONTENTS--DISPLAY--FEES.--

A. A license issued by the board shall contain the

name of the person to whom it is issued, the date and number

of the license and other information the board may require.

B. The most recent address contained in the

board's records for each licensee is the address deemed

sufficient for purposes of service of process and

correspondence and notice from the board. Any licensee whose

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address changes shall, within thirty days of the change,

notify the board of the address change.

C. A licensee 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.

D. A licensee shall display the license in the

office or place in which the licensee practices in a location

clearly visible to patients.

E. The board shall establish license and

administrative fees, but no individual fee shall exceed five

hundred dollars ($500)."

Section 8. A new section of the Medical Practice Act is

enacted to read:

"COMMITTEE--CREATION--ORGANIZATION--PER DIEM AND

MILEAGE--REMOVAL.--

A. The "polysomnography practice advisory

committee" is created to advise the board on all matters

related to the Polysomnography Practice Act. The board shall

provide administrative and financial support to the

committee.

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B. The committee shall have five members, who are

residents of New Mexico, appointed by the board as follows:

(1) two members who are credentialed by the

board of registered polysomnographic technologists; provided

that when the New Mexico medical board begins issuing

licenses, this category of committee 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 whose background is at the

discretion of the board; and

(4) 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

committee 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

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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 committee until a

replacement is appointed.

D. The committee shall elect annually a

chairperson and other officers as the committee determines to

be necessary.

E. The committee 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. Members of the committee shall be reimbursed 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 committee.

G. The board may remove from office a member of

the committee for neglect of duties required by the

Polysomnography Practice Act, malfeasance in office,

incompetence or unprofessional conduct."

Section 9. A new section of the Medical Practice Act is

enacted to read:

"BOARD--COMMITTEE--POWERS AND DUTIES.--

A. The board, with the advice of the committee,

shall have powers regarding licensing of polysomnographic

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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, with the advice of the committee,

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

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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 10. A new section of the Medical Practice Act

is enacted to read:

"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 11. Section 61-6-5 NMSA 1978 (being Laws 1973,

Chapter 361, Section 2, as amended) is amended to read:

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"61-6-5. DUTIES AND POWERS.--The board shall:

A. enforce and administer the provisions of the

Medical Practice Act, the Physician Assistant Act, the

Anesthesiologist Assistants Act, the Impaired Health Care

Provider Act and the Polysomnography Practice Act;

B. adopt, publish and file, in accordance with the

Uniform Licensing Act and the State Rules Act, all rules for

the implementation and enforcement of the provisions of the

Medical Practice Act, the Physician Assistant Act, the

Anesthesiologist Assistants Act, the Impaired Health Care

Provider Act and the Polysomnography Practice Act;

C. adopt and use a seal;

D. administer oaths to all applicants, witnesses

and others appearing before the board, as appropriate;

E. take testimony on matters within the board's

jurisdiction;

F. keep an accurate record of all its meetings,

receipts and disbursements;

G. maintain records in which the name, address and

license number of all licensees shall be recorded, together

with a record of all license renewals, suspensions,

revocations, probations, stipulations, censures, reprimands

and fines;

H. grant, deny, review, suspend and revoke

licenses to practice medicine and censure, reprimand, fine

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and place on probation and stipulation licensees and

applicants in accordance with the Uniform Licensing Act for

any cause stated in the Medical Practice Act and the Impaired

Health Care Provider Act;

I. hire staff and administrators as necessary to

carry out the provisions of the Medical Practice Act;

J. have the authority to hire or contract with

investigators to investigate possible violations of the

Medical Practice Act;

K. have the authority to hire a competent attorney

to give advice and counsel in regard to any matter connected

with the duties of the board, to represent the board in any

legal proceedings and to aid in the enforcement of the laws

in relation to the medical profession and to fix the

compensation to be paid to such attorney; provided, however,

that such attorney shall be compensated from the funds of the

board;

L. establish continuing medical education

requirements for licensed physicians and continuing education

requirements for physician assistants;

M. establish committees as it deems necessary for

carrying on its business;

N. hire or contract with a licensed physician to

serve as medical director and fulfill specified duties of the

secretary-treasurer; and

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O. establish and maintain rules related to the

management of pain based on review of national standards for

pain management."

Section 12. Section 61-6-6 NMSA 1978 (being Laws 1973,

Chapter 361, Section 1, as amended) is amended to read:

"61-6-6. DEFINITIONS.--As used in Chapter 61, Article 6

NMSA 1978:

A. "approved postgraduate training program" means

a program approved by the accrediting council on graduate

medical education of the American medical association or by

the board;

B. "board" means the New Mexico medical board;

C. "licensed physician" means a medical doctor

licensed under the Medical Practice Act to practice medicine

in New Mexico;

D. "licensee" means a medical doctor, physician

assistant, polysomnographic technologist or anesthesiologist

assistant licensed by the board to practice in New Mexico;

E. "medical college or school in good standing"

means a board-approved medical college or school that has as

high a standard as that required by the association of

American medical colleges and the council on medical

education of the American medical association;

F. "medical student" means a student enrolled in a

board-approved medical college or school in good standing;

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G. "physician assistant" means a health

professional who is licensed by the board to practice as a

physician assistant and who provides services to patients

under the supervision and direction of a licensed physician;

H. "intern" means a first-year postgraduate

student upon whom a degree of doctor of medicine and surgery

or equivalent degree has been conferred by a medical college

or school in good standing;

I. "resident" means a graduate of a medical

college or school in good standing who is in training in a

board-approved and accredited residency training program in a

hospital or facility affiliated with an approved hospital and

who has been appointed to the position of "resident" or

"fellow" for the purpose of postgraduate medical training;

J. "the practice of medicine" consists of:

(1) advertising, holding out to the public

or representing in any manner that one is authorized to

practice medicine in this state;

(2) offering or undertaking to administer,

dispense or prescribe a drug or medicine for the use of

another person, except as authorized pursuant to a

professional or occupational licensing statute set forth in

Chapter 61 NMSA 1978;

(3) offering or undertaking to give or

administer, dispense or prescribe a drug or medicine for the

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use of another person, except as directed by a licensed

physician;

(4) offering or undertaking to perform an

operation or procedure upon a person;

(5) offering or undertaking to diagnose,

correct or treat in any manner or by any means, methods,

devices or instrumentalities any disease, illness, pain,

wound, fracture, infirmity, deformity, defect or abnormal

physical or mental condition of a person;

(6) offering medical peer review,

utilization review or diagnostic service of any kind that

directly influences patient care, except as authorized

pursuant to a professional or occupational licensing statute

set forth in Chapter 61 NMSA 1978; or

(7) acting as the representative or agent of

a person in doing any of the things listed in this

subsection;

K. "the practice of medicine across state lines"

means:

(1) the rendering of a written or otherwise

documented medical opinion concerning diagnosis or treatment

of a patient within this state by a physician located outside

this state as a result of transmission of individual patient

data by electronic, telephonic or other means from within

this state to the physician or the physician's agent; or

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(2) the rendering of treatment to a patient

within this state by a physician located outside this state

as a result of transmission of individual patient data by

electronic, telephonic or other means from within this state

to the physician or the physician's agent;

L. "sexual contact" means touching the primary

genital area, groin, anus, buttocks or breast of a patient or

allowing a patient to touch another's primary genital area,

groin, anus, buttocks or breast in a manner that is commonly

recognized as outside the scope of acceptable medical

practice;

M. "sexual penetration" means sexual intercourse,

cunnilingus, fellatio or anal intercourse, whether or not

there is any emission, or introducing any object into the

genital or anal openings of another in a manner that is

commonly recognized as outside the scope of acceptable

medical practice; and

N. "United States" means the fifty states, its

territories and possessions and the District of Columbia."

Section 13. Section 61-6-15 NMSA 1978 (being Laws 1969,

Chapter 46, Section 6, as amended) is amended to read:

"61-6-15. LICENSE MAY BE REFUSED, REVOKED OR

SUSPENDED--LICENSEE MAY BE FINED, CENSURED OR REPRIMANDED--

PROCEDURE--PRACTICE AFTER SUSPENSION OR REVOCATION--PENALTY--

UNPROFESSIONAL AND DISHONORABLE CONDUCT DEFINED--FEES AND

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EXPENSES.--

A. The board may refuse to license and may revoke

or suspend a license that has been issued by the board or a

previous board and may fine, censure or reprimand a licensee

upon satisfactory proof being made to the board that the

applicant for or holder of the license has been guilty of

unprofessional or dishonorable conduct. The board may also

refuse to license an applicant who is unable to practice

medicine, practice as a physician assistant or an

anesthesiologist assistant or engage in the practice of

polysomnography, pursuant to Section 61-7-3 NMSA 1978. All

proceedings shall be as required by the Uniform Licensing Act

or the Impaired Health Care Provider Act.

B. The board may, in its discretion and for good

cause shown, place the licensee on probation on the terms and

conditions it deems proper for protection of the public, for

the purpose of rehabilitation of the probationer or both.

Upon expiration of the term of probation, if a term is set,

further proceedings may be abated by the board if the holder

of the license furnishes the board with evidence that the

licensee is competent to practice, is of good moral character

and has complied with the terms of probation.

C. If evidence fails to establish to the

satisfaction of the board that the licensee is competent and

is of good moral character or if evidence shows that the

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licensee has not complied with the terms of probation, the

board may revoke or suspend the license. If a license to

practice in this state is suspended, the holder of the

license may not practice during the term of suspension. A

person whose license has been revoked or suspended by the

board and who thereafter practices or attempts or offers to

practice in New Mexico, unless the period of suspension has

expired or been modified by the board or the license

reinstated, is guilty of a felony and shall be punished as

provided in Section 61-6-20 NMSA 1978.

D. "Unprofessional or dishonorable conduct", as

used in this section, means, but is not limited to because of

enumeration, conduct of a licensee that includes the

following:

(1) procuring, aiding or abetting a criminal

abortion;

(2) employing a person to solicit patients

for the licensee;

(3) representing to a patient that a

manifestly incurable condition of sickness, disease or injury

can be cured;

(4) obtaining a fee by fraud or

misrepresentation;

(5) willfully or negligently divulging a

professional confidence;

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(6) conviction of an offense punishable by

incarceration in a state penitentiary or federal prison or

conviction of a misdemeanor associated with the practice of

the licensee. A copy of the record of conviction, certified

by the clerk of the court entering the conviction, is

conclusive evidence;

(7) habitual or excessive use of intoxicants

or drugs;

(8) fraud or misrepresentation in applying

for or procuring a license to practice in this state or in

connection with applying for or procuring renewal, including

cheating on or attempting to subvert the licensing

examinations;

(9) making false or misleading statements

regarding the skill of the licensee or the efficacy or value

of the medicine, treatment or remedy prescribed or

administered by the licensee or at the direction of the

licensee in the treatment of a disease or other condition of

the human body or mind;

(10) impersonating another licensee,

permitting or allowing a person to use the license of the

licensee or practicing as a licensee under a false or assumed

name;

(11) aiding or abetting the practice of a

person not licensed by the board;

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(12) gross negligence in the practice of a

licensee;

(13) manifest incapacity or incompetence to

practice as a licensee;

(14) discipline imposed on a licensee by

another state, including denial, probation, suspension or

revocation, based upon acts by the licensee similar to acts

described in this section. A certified copy of the record of

suspension or revocation of the state making the suspension

or revocation is conclusive evidence;

(15) the use of a false, fraudulent or

deceptive statement in a document connected with the practice

of a licensee;

(16) fee splitting;

(17) the prescribing, administering or

dispensing of narcotic, stimulant or hypnotic drugs for other

than accepted therapeutic purposes;

(18) conduct likely to deceive, defraud or

harm the public;

(19) repeated similar negligent acts;

(20) employing abusive billing practices;

(21) failure to report to the board any

adverse action taken against the licensee by:

(a) another licensing jurisdiction;

(b) a peer review body;

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(d) a professional or medical society

or association;

(e) a governmental agency;

(f) a law enforcement agency; or

(g) a court for acts or conduct similar

to acts or conduct that would constitute grounds for action

as defined in this section;

(22) failure to report to the board

surrender of a license or other authorization to practice in

another state or jurisdiction or surrender of membership on

any medical staff or in any medical or professional

association or society following, in lieu of and while under

disciplinary investigation by any of those authorities or

bodies for acts or conduct similar to acts or conduct that

would constitute grounds for action as defined in this

section;

(23) failure to furnish the board, its

investigators or representatives with information requested

by the board;

(24) abandonment of patients;

(25) being found mentally incompetent or

insane by a court of competent jurisdiction;

(26) injudicious prescribing, administering

or dispensing of a drug or medicine;

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(27) failure to adequately supervise, as

provided by board rule, a medical or surgical assistant or

technician or professional licensee who renders health care;

(28) sexual contact with a patient or person

who has authority to make medical decisions for a patient,

other than the spouse of the licensee;

(29) conduct unbecoming in a person licensed

to practice or detrimental to the best interests of the

public;

(30) the surrender of a license or

withdrawal of an application for a license before another

state licensing board while an investigation or disciplinary

action is pending before that board for acts or conduct

similar to acts or conduct that would constitute grounds for

action pursuant to this section;

(31) sexual contact with a former mental

health patient of the licensee, other than the spouse of the

licensee, within one year from the end of treatment;

(32) sexual contact with a patient when the

licensee uses or exploits treatment, knowledge, emotions or

influence derived from the previous professional

relationship;

(33) improper management of medical records,

including failure to maintain timely, accurate, legible and

complete medical records;

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(34) failure to provide pertinent and

necessary medical records to a physician or patient of the

physician in a timely manner when legally requested to do so

by the patient or by a legally designated representative of

the patient;

(35) undertreatment of pain as provided by

board rule;

(36) interaction with physicians, hospital

personnel, patients, family members or others that interferes

with patient care or could reasonably be expected to

adversely impact the quality of care rendered to a patient;

(37) soliciting or receiving compensation by

a physician assistant or anesthesiologist assistant from a

person who is not an employer of the assistant; or

(38) willfully or negligently divulging

privileged information or a professional secret.

E. As used in this section, "fee splitting"

includes offering, delivering, receiving or accepting any

unearned rebate, refunds, commission preference, patronage

dividend, discount or other unearned consideration, whether

in the form of money or otherwise, as compensation or

inducement for referring patients, clients or customers to a

person, irrespective of any membership, proprietary interest

or co-ownership in or with a person to whom the patients,

clients or customers are referred.

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F. Licensees whose licenses are in a probationary

status shall pay reasonable expenses for maintaining

probationary status, including laboratory costs when

laboratory testing of biological fluids are included as a

condition of probation."

Section 14. Section 61-6-31 NMSA 1978 (being Laws 1989,

Chapter 269, Section 27, as amended) is amended to read:

"61-6-31. DISPOSITION OF FUNDS--NEW MEXICO MEDICAL

BOARD FUND CREATED--METHOD OF PAYMENTS.--

A. There is created the "New Mexico medical board

fund".

B. All funds received by the board and money

collected under the Medical Practice Act, the Physician

Assistant Act, the Anesthesiologist Assistants Act, the

Polysomnography Practice Act and the Impaired Health Care

Provider Act shall be deposited with the state treasurer who

shall place the same to the credit of the New Mexico medical

board fund.

C. All payments out of the fund shall be made on

vouchers issued and signed by the secretary-treasurer of the

board or the designee of the secretary-treasurer upon

warrants drawn by the department of finance and

administration in accordance with the budget approved by that

department.

D. All amounts in the New Mexico medical board

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fund shall be subject to the order of the board and shall be

used only for the purpose of meeting necessary expenses

incurred in:

(1) the performance of the provisions of the

Medical Practice Act, the Physician Assistant Act, the

Anesthesiologist Assistants Act, the Polysomnography Practice

Act and the Impaired Health Care Provider Act and the duties

and powers imposed by those acts; and

(2) the promotion of medical education and

standards in this state within the budgetary limits.

E. All funds that may have accumulated to the

credit of the board under any previous law shall be

transferred to the New Mexico medical board fund and shall

continue to be available for use by the board in accordance

with the provisions of the Medical Practice Act, the

Physician Assistant Act, the Anesthesiologist Assistants Act,

the Polysomnography Practice Act and the Impaired Health Care

Provider Act. All money unused at the end of the fiscal year

shall not revert, but shall remain in the fund for use in

accordance with the provisions of the Medical Practice Act,

the Physician Assistant Act, the Anesthesiologist Assistants

Act, the Polysomnography Practice Act and the Impaired Health

Care Provider Act."

Section 15. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2008.