HB0576

HOUSE BILL 576

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Eleanor Chavez

AN ACT

RELATING TO LICENSING; AMENDING THE ACUPUNCTURE AND ORIENTAL MEDICINE PRACTICE ACT; CLARIFYING THE PROCEDURES AND SUBSTANCES THAT ARE WITHIN THE SCOPE OF ACUPUNCTURE AND ORIENTAL MEDICINE; PROVIDING FOR LIMITED PRESCRIPTIVE AUTHORITY PRACTICE; CREATING A LIMITED PRESCRIPTIVE AUTHORITY PRACTICE COMMITTEE OF THE BOARD OF ACUPUNCTURE AND ORIENTAL MEDICINE; PROVIDING FOR THE POWERS AND DUTIES OF THE LIMITED PRESCRIPTIVE AUTHORITY PRACTICE COMMITTEE; PROVIDING FOR LIMITED PRESCRIPTIVE AUTHORITY PRACTICE FEES.

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

SECTION 1. Section 61-14A-3 NMSA 1978 (being Laws 1993, Chapter 158, Section 11, as amended) is amended to read:

"61-14A-3. DEFINITIONS.--As used in the Acupuncture and Oriental Medicine Practice Act:

A. "acupuncture" means the surgical use of needles inserted into and removed from the body and the use of other devices, modalities and procedures at specific locations on the body for the prevention, cure or correction of any disease, illness, injury, pain or other condition by controlling and regulating the flow and balance of energy [and function] to restore and maintain health;

B. "board" means the board of acupuncture and oriental medicine;

C. "doctor of oriental medicine" means a person licensed as a physician to practice acupuncture and oriental medicine with the ability to practice independently, serve as a primary care provider and as necessary collaborate with other health care providers;

D. "moxibustion" means the use of heat on or above specific locations or on acupuncture needles at specific locations on the body for the prevention, cure or correction of any disease, illness, injury, pain or other condition;

E. "oriental medicine" means the distinct system of primary health care that uses all allied techniques of oriental medicine, both traditional and modern, to diagnose, treat and prescribe for the prevention, cure or correction of disease, illness, injury, pain or other physical or mental condition by controlling and regulating the flow and balance of energy [form and function] to restore and maintain health;

F. "primary care provider" means a health care practitioner acting within the scope of the health care practitioner's license who provides the first level of basic or general health care for a person's health needs, including prevention, diagnostic and treatment services; initiates referrals to other health care practitioners; and maintains the continuity of care when appropriate;

G. "techniques of oriental medicine" means:

(1) the diagnostic and treatment techniques used in oriental medicine that include diagnostic procedures; acupuncture; moxibustion; [manual therapy, also known as tui na] and traditional East Asian manual therapies and massage modalities, excluding chiropractic and osteopathy; other physical medicine modalities and therapeutic procedures; breathing and exercise techniques; and dietary, nutritional and lifestyle counseling;

(2) the prescribing, administering, combining and providing of non-injectable herbal medicines, homeopathic medicines, vitamins, minerals, enzymes, glandular products, [natural substances] food, natural medicines, protomorphogens, [live cell products, gerovital] amino acids, dietary and nutritional supplements, cosmetics as they are defined in the New Mexico Drug, Device and Cosmetic Act [and nonprescription drugs as they are defined in the Pharmacy Act]; and

(3) the prescribing, administering and providing of devices, restricted devices and prescription devices, as those devices are defined in the New Mexico Drug, Device and Cosmetic Act, [if the board determines by rule that the devices are necessary in the practice of oriental medicine and] if the prescribing doctor of oriental medicine [has fulfilled requirements for prescriptive authority in accordance with rules promulgated by the board for the devices enumerated in this paragraph] has completed and maintained all training, continuing education and certification required for the safe and effective use of each specific device pursuant to state and federal law; and

H. "tutor" means a doctor of oriental medicine with at least ten years of clinical experience who is a teacher of acupuncture and oriental medicine."

SECTION 2. Section 61-14A-8 NMSA 1978 (being Laws 1993, Chapter 158, Section 16, as amended) is amended to read:

"61-14A-8. BOARD--POWERS.--The board has the power to:

A. enforce the provisions of the Acupuncture and Oriental Medicine Practice Act;

B. adopt, publish and file, in accordance with the Uniform Licensing Act and the State Rules Act, all rules necessary for the implementation and enforcement of the provisions of the Acupuncture and Oriental Medicine Practice Act; provided that a rule relating to limited prescriptive authority pursuant to the provisions of Section 61-14A-8.1 NMSA 1978 shall require the approval of the limited prescriptive authority practice committee prior to its adoption, publication or filing;

C. adopt a code of ethics;

D. adopt and use a seal;

E. inspect facilities of approved educational programs, extern programs and the offices of licensees;

F. adopt rules implementing continuing education requirements for the purpose of protecting the health and well-being of the citizens of this state and maintaining and continuing informed professional knowledge and awareness;

G. issue investigative subpoenas for the purpose of investigating complaints against licensees prior to the issuance of a notice of contemplated action;

H. administer oaths and take testimony on any matters within the board's jurisdiction;

I. conduct hearings upon charges relating to the discipline of licensees, including the denial, suspension or revocation of a license in accordance with the Uniform Licensing Act; and

J. grant, deny, renew, suspend or revoke licenses to practice acupuncture and oriental medicine or grant, deny, renew, suspend or revoke approvals of educational programs and extern programs in accordance with the provisions of the Uniform Licensing Act for any cause stated in the Acupuncture and Oriental Medicine Practice Act or the rules of the board."

SECTION 3. Section 61-14A-8.1 NMSA 1978 (being Laws 2000, Chapter 53, Section 12, as amended) is amended to read:

"61-14A-8.1. EXPANDED PRACTICE AND PRESCRIPTIVE AUTHORITY--CERTIFICATIONS.--

[A. The] A. An applicant for limited prescriptive authority practice certification shall pay the required fee and furnish evidence satisfactory to the board that the applicant has successfully completed all education and training required by rule of the board. Applications shall be provided by the board and shall include a list of the required supporting documents. Complete applications shall be reviewed by the limited prescriptive authority practice committee.

B. If an applicant has met the requirements for certification in a specific module or modules, the board shall issue certifications, as determined by rule of the board, for expanded practice and prescriptive authority only for the substances enumerated in [Paragraphs (1) and (2) of] Subsection C of this section to a doctor of oriental medicine who has submitted completed forms provided by the board, paid the application fee for certification and submitted proof of successful completion of additional training required by rule of the board. The board shall adopt the rules determined by the board of pharmacy for additional training required for the prescribing, administering, compounding or dispensing of caffeine, procaine, oxygen, epinephrine and bioidentical hormones. The board and the board of pharmacy shall consult as appropriate. [B.] The board shall issue [certifications in the four expanded practices of basic injection therapy, injection therapy, intravenous therapy and bioidentical hormone therapy] certification for limited prescriptive authority to practice in a specified module only for the substances enumerated in Subsection C of this section.

C. The [expanded] limited prescriptive authority practice [and prescriptive authority] certification shall include

[(1) the prescribing, administering, compounding and dispensing of herbal medicines, homeopathic medicines, vitamins, minerals, amino acids, proteins, enzymes, carbohydrates, lipids, glandular products, natural substances, natural medicines, protomorphogens, live cell products, gerovital, dietary and nutritional supplements, cosmetics as they are defined in the New Mexico Drug, Device and Cosmetic Act and nonprescription drugs as they are defined in the Pharmacy Act; and

(2)] the prescribing, administering, compounding and dispensing of the following drugs, dangerous drugs or controlled substances as [they] drugs, dangerous drugs and controlled substances are defined in the New Mexico Drug, Device and Cosmetic Act, the Controlled Substances Act or the Pharmacy Act [if the prescribing doctor of oriental medicine has fulfilled the requirements for expanded practice and prescriptive authority in accordance with the rules promulgated by the board] for the substances enumerated in this [paragraph] subsection:

[(a)] (1) sterile water;

[(b)] (2) sterile saline;

[(c) sarapin or its generic;

(d) caffeine;

(e)] (3) procaine;

[(f) oxygen;

(g) epinephrine;

(h) vapocoolants;

(i) bioidentical hormones;

(j) biological products, including therapeutic serum; and

(k) any of the drugs or substances enumerated in Paragraph (1) of this subsection if at any time those drugs or substances are classified as dangerous drugs or controlled substances]

(4) inhaled oxygen;

(5) subcutaneous and intramuscular epinephrine;

(6) topical vapocoolants;

(7) injectable vitamin B-12;

(8) topical estradiol, estriol, progesterone, testosterone and desiccated thyroid; provided that the applicant has a signed collaborative practice agreement, as the board defines by rule, with a New Mexico-licensed medical doctor or doctor of osteopathic medicine residing in New Mexico;

(9) intradermal and subcutaneous injection of homeopathics, dextrose, minerals, sarapin, sodium chloride, sterile water and vitamins; and

(10) intravenous administration of sterile water, sterile saline, lactated ringers, water-soluble vitamins and minerals.

D. When compounding drugs for their patients, doctors of oriental medicine [certified for expanded practice and prescriptive authority] with limited prescriptive authority certification shall comply with the compounding requirements for licensed health care professionals in the United States pharmacopeia and national formulary. A substance is only authorized for use if procured, prescribed, administered, compounded and dispensed in compliance with federal and state law.

E. A doctor of oriental medicine certified to practice with limited prescriptive authority pursuant to this section shall not use any substance or mode of administration that does not appear on a formulary of approved dangerous drugs or a formulary of approved modes of administration."

SECTION 4. Section 61-14A-16 NMSA 1978 (being Laws 1993, Chapter 158, Section 24, as amended by Laws 2001, Chapter 263, Section 1 and Laws 2001, Chapter 266, Section 2) is amended to read:

"61-14A-16. FEES.--The board shall establish a schedule of reasonable nonrefundable fees not to exceed the following amounts:

A. application for licensing. . . . . . . . . $800;

B. application for reciprocal licensing. . . . 750;

C. application for temporary licensing. . . . .500;

D. examination, not including the cost of any nationally recognized examination. . . . . . . . . . . . . 700;

E. annual license renewal. . . . . . . . . . . 400;

F. late license renewal. . . . . . . . . . . . 200;

G. expired license renewal. . . . . . . . . . .400;

H. temporary license renewal. . . . . . . . . .100;

I. application for approval or renewal of approval of an educational program. . . . . . . . . . . . . . . . . 600;

J. late renewal of approval of an educational program. . . . . . . . . . . . . . . . . . . . . . . . . . 200;

K. annual continuing education provider

registration. . . . . . . . . . . . . . . . . . . . . . . .200;

L. application for [extended or expanded] module 1, 2, 3 or 4 limited prescriptive authority certification, per module. . . . . . . . . . . . . . . . . . . . . . . . . . .500;

M. renewal of application for module 1, 2, 3 or 4 limited prescriptive authority certification, per module . 200;

N. application for biennial expanded practice certification renewal. . . . . . . . . . . . . . . . . . . 200;

O. late expanded practice certification renewal125;

P. expired expanded practice certification

renewal . . . . . . . . . . . . . . . . . . . . . . . . . 100;

[M.] Q. application for externship supervisor registration. . . . . . . . . . . . . . . . . . . . . . . .500;

[N.] R. application for extern certification. .500;

and

[O.] S. any and all fees to cover reasonable and necessary administrative expenses."

SECTION 5. Section 61-14A-17 NMSA 1978 (being Laws 1993, Chapter 158, Section 25, as amended) is amended to read:

"61-14A-17. DISCIPLINARY PROCEEDINGS--JUDICIAL REVIEW--APPLICATION OF UNIFORM LICENSING ACT.--

A. In accordance with the procedures contained in the Uniform Licensing Act, the board may deny, revoke or suspend [any] a limited prescriptive authority practice certification and a permanent or temporary license held or applied for under the Acupuncture and Oriental Medicine Practice Act, upon findings by the board that the licensee or applicant:

(1) is guilty of fraud or deceit in procuring or attempting to procure a license;

(2) has been convicted of a felony. A certified copy of the record of conviction shall be conclusive evidence of such conviction;

(3) is guilty of incompetence as defined by board rule;

(4) is habitually intemperate, is addicted to the use of habit-forming drugs or is addicted to [any] a vice to such a degree as to render [him] the licensee or applicant unfit to practice as a doctor of oriental medicine;

(5) is guilty of unprofessional conduct, as defined by board rule;

(6) is guilty of [any] a violation of the Controlled Substances Act;

(7) has violated [any] a provision of the Acupuncture and Oriental Medicine Practice Act or rules promulgated by the board;

(8) is guilty of failing to furnish the board, its investigators or representatives with information requested by the board;

(9) is guilty of willfully or negligently practicing beyond the scope of acupuncture and oriental medicine as defined in the Acupuncture and Oriental Medicine Practice Act;

(10) is guilty of failing to adequately supervise a sponsored temporary licensee;

(11) is guilty of aiding or abetting the practice of acupuncture and oriental medicine by a person not licensed by the board;

(12) is guilty of practicing or attempting to practice under an assumed name;

(13) advertises by means of knowingly false statements;

(14) advertises or attempts to attract patronage in any unethical manner prohibited by the Acupuncture and Oriental Medicine Practice Act or the rules of the board;

(15) has been declared mentally incompetent by regularly constituted authorities;

(16) has had a license, certificate or registration to practice as a doctor of oriental medicine revoked, suspended or denied in any jurisdiction of the United States or a foreign country for actions of the licensee similar to acts described in this subsection. A certified copy of the record of the jurisdiction taking such disciplinary action will be conclusive evidence thereof; or

(17) fails, when diagnosing or treating a patient, to possess or apply the knowledge or to use the skill and care ordinarily used by reasonably well-qualified doctors of oriental medicine practicing under similar circumstances, giving due consideration to the locality involved.

B. Disciplinary proceedings may be instituted by any person, shall be by sworn complaint and shall conform with the provisions of the Uniform Licensing Act. [Any] A party to the hearing may obtain a copy of the hearing record upon payment of the costs of the copy.

C. [Any] A person filing a sworn complaint shall be immune from liability arising out of civil action if the complaint is filed in good faith and without actual malice.

D. The licensee shall bear the costs of disciplinary proceedings unless exonerated.

E. At the request of the limited prescriptive authority practice committee, the board may hire or contract with investigators to investigate possible violations of the Acupuncture and Oriental Medicine Practice Act."

SECTION 6. A new section of the Acupuncture and Oriental Medicine Practice Act is enacted to read:

"[NEW MATERIAL] LIMITED PRESCRIPTIVE AUTHORITY PRACTICE COMMITTEE--MEMBERSHIP--APPOINTMENT--DUTIES--POWERS.--

A. The "limited prescriptive authority practice committee" of the board of acupuncture and oriental medicine is created. The committee shall consist of two professional members of the New Mexico medical board appointed by the medical board, two professional members of the board of pharmacy appointed by the board of pharmacy and two professional members of the board of acupuncture and oriental medicine appointed by the board of acupuncture and oriental medicine who shall have no professional or financial stake in limited prescriptive authority practice. The committee shall:

(1) review all limited prescriptive authority practice applications and report to the board in writing, within forty-five days of the application being complete, that the applicant has or has not met the requirements for certification as established by board rules;

(2) develop mandatory limited prescriptive authority consent forms;

(3) develop limited prescriptive authority formularies, including specific routes of administration, for:

(a) module one, basic injection therapy;

(b) module two, injection therapy;

(d) module four, non-injectable bioidentical hormone therapy certification;

(4) review and either approve or reject the rules proposed by the board for all training required for the prescribing, administering, compounding or dispensing of the substances listed in Subsection C of Section 61-14A-8.1 NMSA 1978;

(5) approve a formulary of drugs, dangerous drugs and controlled substances listed in Section 61-14A-8.1 NMSA 1978 as drugs, dangerous drugs and controlled substances are defined in the New Mexico Drug, Device and Cosmetic Act and the Controlled Substances Act and approve rules governing the prescribing, administering, compounding and dispensing of these drugs, dangerous drugs and controlled substances by certified practitioners;

(6) review and investigate all complaints against a licensee with limited prescriptive authority practice certification and participate in any executive session of the board in which a complaint is discussed. The committee shall submit to the board of acupuncture and oriental medicine, the New Mexico medical board and the board of pharmacy a report that includes any possible violations of that act and a recommendation to dismiss for no violation or a recommendation to proceed with disciplinary proceedings pursuant to Section 61-14A-17 NMSA 1978;

(7) elect a chair and vice chair from among its members; and

(8) meet at least once annually and at the call of the chair of the board of acupuncture and oriental medicine.

B. Committee members' terms shall correspond to their individual terms on their boards of origin.

C. Committee members may be reimbursed by their respective boards of origin pursuant to the Per Diem and Mileage Act but shall receive no other compensation, perquisite or allowance for their service on the committee.

D. Committee members may be removed from the committee by their original appointing authorities in accordance to the rules or bylaws of their boards of origin."

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