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AN ACT

RELATING TO PROFESSIONAL LICENSING; PROVIDING LICENSING

REQUIREMENTS FOR GENETIC COUNSELORS; PROVIDING FOR A DELAYED

EFFECTIVE DATE; MAKING AN APPROPRIATION.

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

Section 1. SHORT TITLE.--Sections 1 through 10 of this

act may be cited as the "Genetic Counseling Act".

Section 2. FINDINGS AND PURPOSE.--

A. The legislature finds that the mapping of the

human genome continues to result in the rapid expansion of

genetic knowledge and a proliferation of testing for genetic

conditions. This has created a need for qualified

professional genetic counselors to coordinate assessments, to

deliver accurate information to families, to assist families

in adjusting to the implications of their diagnoses and to

help ensure that genetic information is used appropriately in

the delivery of medical care.

B. The purpose of the Genetic Counseling Act is to

protect the public from the unprofessional, improper,

incompetent and unlawful practice of genetic counseling.

Section 3. DEFINITIONS.--As used in the Genetic

Counseling Act:

A. "ABGC" means the American board of genetic

counseling, a national agency for certification and

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recertification of genetic counselors, or its successor

agency;

B. "ABMG" means the American board of medical

genetics, a national agency for certification and

recertification of genetic counselors and geneticists with

medical or other doctoral degrees, or its successor agency;

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

D. "genetic counseling" means a communication

process that may include:

(1) estimating the likelihood of occurrence

or recurrence of any potentially inherited or genetically

influenced condition or congenital abnormality. "Genetic

counseling" may involve:

(a) obtaining and analyzing the

complete health history of an individual and family members;

(b) reviewing pertinent medical

records;

(c) evaluating the risks from exposure

to possible mutagens or teratogens; and

(d) determining appropriate genetic

testing or other evaluations to diagnose a condition or

determine the carrier status of one or more family members;

(2) helping an individual, family or health

care provider to:

(a) appreciate the medical,

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psychological and social implications of a disorder,

including its features, variability, usual course and

management options;

(b) learn how genetic factors

contribute to a disorder and affect the chance for occurrence

of the disorder in other family members;

(c) understand available options for

coping with, preventing or reducing the chance of occurrence

or recurrence of a disorder;

(d) select the most appropriate,

accurate and cost-effective methods of diagnosis; and

(e) understand genetic or prenatal

tests, coordinate testing for inherited disorders and

interpret complex genetic test results; and

(3) facilitating an individual's or

family's:

(a) exploration of the perception of

risk and burden associated with a genetic disorder; and

(b) adjustment and adaptation to a

disorder or the individual's or family's genetic risk by

addressing needs for psychological, social and medical

support; and

E. "genetic counselor" means a person licensed

pursuant to the Genetic Counseling Act to engage in the

practice of genetic counseling.

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Section 4. LICENSE REQUIRED.--Unless licensed as a

genetic counselor pursuant to the Genetic Counseling Act, a

person shall not:

A. engage in the practice of genetic counseling;

B. use the title or make any representation as

being a licensed genetic counselor or use any other title,

abbreviation, letters, figures, signs or devices that

indicate or imply that the person is licensed to practice as

a genetic counselor, including a genetic associate, gene

counselor or genetic consultant; or

C. advertise, hold out to the public or represent

in any manner that the person is authorized to practice

genetic counseling.

Section 5. EXEMPTIONS.--

A. Nothing in the Genetic Counseling Act is

intended to limit, interfere with or prevent a licensed

health care professional from practicing within the scope of

the professional license of that health care professional;

however, a licensed health care professional shall not

advertise to the public or any private group or business by

using any title or description of services that includes the

term "genetic counseling" unless the health care professional

is licensed under the Genetic Counseling Act.

B. The Genetic Counseling Act shall not apply to

or affect:

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(1) a physician licensed under the Medical

Practice Act;

(2) a commissioned physician or surgeon

serving in the armed forces of the United States or a federal

agency; or

(3) an osteopathic physician licensed by the

board of osteopathic medical examiners.

Section 6. REQUIREMENTS FOR LICENSING.--The board shall

grant a license to practice genetic counseling to a person

who has:

A. submitted to the board:

(1) a completed application for licensing on

the form provided by the board;

(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 having

earned:

(a) a master's degree from a genetic

counseling training program that is accredited by the ABGC,

or an equivalent as determined by the board; or

(b) a doctoral degree from a medical

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genetics training program that is accredited by the ABMG, or

an equivalent as determined by the board; and

(6) proof that the applicant is ABGC- or

ABMG-certified; and

B. complied with any other requirements of the

board.

Section 7. LICENSE RENEWAL.--

A. A licensee shall renew the licensee's genetic

counseling 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 annual 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

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 annual license

renewal; and

(3) the required late fee.

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D. A genetic counselor'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

annual license renewal and may require the former licensee to

reapply as a new applicant.

Section 8. TEMPORARY LICENSE.--

A. The board may issue a temporary license to an

applicant who has met all licensure requirements except the

examination requirement. The temporary license is valid

until the results of the next scheduled examination are

available and a license is issued or denied. The temporary

license automatically expires if the applicant fails to take

the next scheduled examination, or upon release of official

examination results if the applicant fails the examination.

B. The board may issue a temporary license to a

person licensed in another state or country who:

(1) is in New Mexico temporarily to teach or

assist a New Mexico resident licensed to practice genetic

counseling; or

(2) met the requirements for licensure in

that state, which were equal to or greater than the

requirements for licensure in New Mexico at the time the

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license was obtained in the other state.

C. The board shall not issue a temporary license

to a person who qualifies for the temporary license under

Subsection A of this section more than two consecutive times

within the five-year period immediately following the

issuance of the first temporary license.

D. A person practicing genetic counseling under a

temporary license shall be supervised by a licensed genetic

counselor or physician.

Section 9. FEES.--The board shall establish a schedule

of reasonable administrative and licensing fees, but an

individual fee shall not exceed four hundred dollars ($400).

Section 10. CRIMINAL OFFENDER EMPLOYMENT ACT.--The

provisions of the Criminal Offender Employment Act shall

govern any consideration of criminal records required or

permitted by the Genetic Counseling Act.

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

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

"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 Genetic Counseling Act

and the Impaired Health Care Provider Act;

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

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

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the implementation and enforcement of the provisions of the

Medical Practice Act, the Physician Assistant Act, the

Anesthesiologist Assistants Act, the Genetic Counseling Act

and the Impaired Health Care Provider 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

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

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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

O. establish and maintain rules related to the

management of pain based on review of national standards for

pain management."

Section 12. Section 61-6-15 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--

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

UNPROFESSIONAL AND DISHONORABLE CONDUCT DEFINED--FEES AND

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 practice genetic counseling,

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

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satisfaction of the board that the licensee is competent and

is of good moral character or if evidence shows that the

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;

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(5) willfully or negligently divulging a

professional confidence;

(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;

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(11) aiding or abetting the practice of a

person not licensed by the board;

(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:

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(a) another licensing jurisdiction;

(b) a peer review body;

(c) a health care entity;

(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;

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(26) injudicious prescribing, administering

or dispensing of a drug or medicine;

(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,

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including failure to maintain timely, accurate, legible and

complete medical records;

(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

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

clients or customers are referred.

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 13. 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

Genetic Counseling 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

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department.

D. All amounts in the New Mexico medical board

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 Genetic Counseling 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 Genetic Counseling 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 Genetic Counseling Act and the Impaired Health Care

Provider Act."

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Section 14. EFFECTIVE DATE.--The effective date of the

provisions of this act is July 1, 2009.