HB0349

HOUSE BILL 349

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Dennis J. Roch

AN ACT

RELATING TO HEALTH CARE; AMENDING AND ENACTING SECTIONS OF THE DENTAL HEALTH CARE ACT; PROVIDING FOR LICENSURE AND A SCOPE OF PRACTICE FOR DENTAL THERAPISTS; PROVIDING FOR THE REGULATION, LICENSURE AND DISCIPLINE OF DENTAL THERAPISTS; AMENDING SECTIONS OF THE GROSS RECEIPTS AND COMPENSATING TAX ACT, THE NEW MEXICO DRUG, DEVICE AND COSMETIC ACT, THE PUBLIC ASSISTANCE ACT, CHAPTER 59A, ARTICLE 22 NMSA 1978, THE NONPROFIT HEALTH CARE PLAN LAW AND THE IMPAIRED DENTISTS AND DENTAL HYGIENISTS ACT; RENAMING THE IMPAIRED DENTISTS AND DENTAL HYGIENISTS ACT AS THE "IMPAIRED DENTAL PROFESSIONALS ACT"; PROVIDING PENALTIES.

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

SECTION 1. Section 61-5A-2 NMSA 1978 (being Laws 1994, Chapter 55, Section 2, as amended) is amended to read:

"61-5A-2. PURPOSE.--

A. In the interest of the public health, safety and welfare and to protect the public from the improper, unprofessional, incompetent and unlawful practice of dentistry, dental therapy and dental hygiene, it is necessary to provide laws and rules controlling the granting and use of the privilege to practice dentistry, dental therapy and dental hygiene and to establish a board of dental health care, a joint committee and a dental hygienists committee to implement and enforce those laws and rules.

B. The primary duties of the New Mexico board of dental health care are:

(1) to issue licenses to qualified dentists and owners of dental practices;

(2) to certify qualified dental assistants, expanded-function dental auxiliaries and community dental health coordinators;

(3) to issue licenses to dental therapists in accordance with the recommendation of the joint committee;

[(3)] (4) to issue licenses to dental hygienists [through] in accordance with the recommendation of the [dental hygienists] committee;

[(4)] (5) to discipline incompetent or unprofessional dentists; dental assistants; owners of dental practices; [and, through the] dental therapists in accordance with the recommendation of the joint committee; and dental hygienists in accordance with the recommendation of the committee [dental hygienists]; and

[(5)] (6) to aid in the rehabilitation of impaired dentists, dental therapists and dental hygienists for the purpose of protecting the public."

SECTION 2. Section 61-5A-3 NMSA 1978 (being Laws 1994, Chapter 55, Section 3, as amended) is amended to read:

"61-5A-3. DEFINITIONS.--As used in the Dental Health Care Act:

A. "assessment" means the review and documentation of the oral condition, and the recognition and documentation of deviations from the healthy condition, without a diagnosis to determine the cause or nature of disease or its treatment;

B. "board" means the New Mexico board of dental health care;

C. "certified dental assistant" means an individual certified by the dental assisting national board;

D. "collaborative dental hygiene practice" means a New Mexico licensed dental hygienist practicing according to Subsections D through G of Section 61-5A-4 NMSA 1978;

E. "committee" means the New Mexico dental hygienists committee;

F. "community dental health coordinator" means a dental assistant, a dental hygienist or other trained personnel certified by the board as a community dental health coordinator to provide educational, preventive and limited palliative care and assessment services working collaboratively under the general supervision of a licensed dentist in settings other than traditional dental offices and clinics;

G. "consulting dentist" means a dentist who has entered into an approved agreement to provide consultation and create protocols with a collaborating dental hygienist and, when required, to provide diagnosis and authorization for services, in accordance with the rules of the board and the committee;

H. "dental assistant certified in expanded functions" means a dental assistant who meets specific qualifications set forth by rule of the board;

I. "dental health professional shortage area" means a geographic area of the state designated by a federal or state agency as having a significantly limited number of dental health care providers;

[H.] J. "dental hygiene-focused assessment" means the documentation of existing oral and relevant system conditions and the identification of potential oral disease to develop, communicate, implement and evaluate a plan of oral hygiene care and treatment;

[I. "dental assistant certified in expanded functions" means a dental assistant who meets specific qualifications set forth by rule of the board;

J.] K. "dental hygienist" means an individual who has graduated and received a degree from a dental hygiene educational program that is accredited by the commission on dental accreditation, that provides a minimum of two academic years of dental hygiene curriculum and that is an institution of higher education; and "dental hygienist" means, except as the context otherwise requires, an individual who holds a license to practice dental hygiene in New Mexico;

[K.] L. "dental laboratory" means any place where dental restorative, prosthetic, cosmetic and therapeutic devices or orthodontic appliances are fabricated, altered or repaired by one or more persons under the orders and authorization of a dentist;

[L.] M. "dental technician" means an individual, other than a licensed dentist, who fabricates, alters, repairs or assists in the fabrication, alteration or repair of dental restorative, prosthetic, cosmetic and therapeutic devices or orthodontic appliances under the orders and authorization of a dentist;

N. "dental therapist" means an individual licensed to practice dental therapy in the state;

O. "dental therapist management agreement" means a written general supervision agreement between a dentist and a dental therapist;

P. "dental therapy representative" means an individual who:

(1) publicly supports or recommends the practice of dental therapy in the state;

(2) has knowledge of the practice of dental therapy or of the educational or licensing requirements for the practice of dental therapy; and

(3) has been nominated by a representative of:

(a) New Mexico health resources, inc.;

(b) health action New Mexico;

(d) an institution of higher education located in New Mexico that has a dental therapist education program;

[M.] Q. "dentist" means an individual who has graduated and received a degree from a school of dentistry that is accredited by the commission on dental accreditation and, except as the context otherwise requires, who holds a license to practice dentistry in New Mexico;

[N.] R. "direct supervision" means the process under which an act is performed when a dentist or a dental therapist licensed pursuant to the Dental Health Care Act:

(1) is physically present throughout the performance of the act;

(2) orders, controls and accepts full professional responsibility for the act performed; and

(3) evaluates and approves the procedure performed before the patient departs the care setting;

[O.] S. "expanded-function dental auxiliary" means a dental assistant, dental hygienist or other dental practitioner that has received education beyond that required for licensure or certification in that individual's scope of practice and that has been certified by the board as an expanded-function dental auxiliary who works under the direct supervision of a dentist;

[P. "general supervision" means the authorization by a dentist of the procedures to be used by a dental hygienist, dental assistant or dental student and the execution of the procedures in accordance with a dentist's diagnosis and treatment plan at a time the dentist is not physically present and in facilities as designated by rule of the board;]

T. "general supervision" means a dentist's authorization of the procedures that are executed:

(1) by a dental therapist, dental hygienist, dental assistant or dental student while the dentist is not physically present in the facility where a procedure is taking place; and

(2) in accordance with the following:

(a) for a dental therapist, in accordance with the dental therapist's diagnosis and treatment plan; and

(b) for a dental hygienist, dental assistant or dental student, in accordance with a dentist's diagnosis and treatment plan;

[Q.] U. "indirect supervision" means that a dentist or dental therapist, or in certain settings a dental hygienist or dental assistant certified in expanded functions, is present in the treatment facility while authorized treatments are being performed by a dental therapist, unlicensed graduate of a dental therapy education program, dental hygienist, dental assistant or dental student;

V. "joint committee" means the New Mexico dental therapist joint committee that makes recommendations to the board relating to the regulation of the practice of dental therapy and licensure of dental therapists;

[R.] W. "non-dentist owner" means an individual not licensed as a dentist in New Mexico or a corporate entity not owned by a majority interest of a New Mexico licensed dentist that employs or contracts with a dentist, dental therapist or dental hygienist to provide dental, dental therapy or dental hygiene services;

[S.] X. "palliative procedures" means nonsurgical, reversible procedures that are meant to alleviate pain and stabilize acute or emergent problems; [and]

Y. "store-and-forward technology" means electronic information, imaging and communication, including interactive audio, video and data communications, that is transferred or recorded or otherwise stored for asynchronous use;

[T.] Z. "teledentistry" means a dentist's use of health information technology in real time to provide limited diagnostic and treatment planning services in cooperation with another dentist, a dental therapist, a dental hygienist, a community dental health coordinator or a student enrolled in a program of study to become a dental assistant, dental hygienist, dental therapist or dentist; and

AA. "telehealth" means the use of electronic information, imaging and communication technologies, including interactive audio, video and data communications, as well as store-and-forward technologies, to provide and support health care delivery, diagnosis, consultation treatment, transfer of medical data and education."

SECTION 3. Section 61-5A-9 NMSA 1978 (being Laws 1994, Chapter 55, Section 9, as amended by Laws 2003, Chapter 408, Section 5 and by Laws 2003, Chapter 409, Section 7) is amended to read:

"61-5A-9. COMMITTEE CREATED--POWERS.--

A. There is created the nine-member "New Mexico dental hygienists committee". The committee [shall be] is administratively attached to the regulation and licensing department. The committee [shall consist] consists of five dental hygienists, two dentists and two public members. The dental hygienists shall be actively practicing and have been licensed practitioners and residents of New Mexico for a period of five years preceding the date of their appointment. The dentists and public members shall be members of the board and shall be elected annually to sit on the committee by those members sitting on the board.

B. The governor may appoint the dental hygienists from a list of names submitted by the New Mexico dental hygienists association. There shall be one member from each district. Members shall serve until their successors have been appointed. No more than one member may be employed by or receive remuneration from a dental or dental hygiene educational institution.

C. Appointments for dental hygienist members shall be for terms of five years. Appointments shall be made so that the term of one dental hygienist expires on July 1 of each year.

D. A committee member failing to attend three committee or board meetings, either regular or special, during the committee member's term shall automatically be removed as a member of the committee unless excused from attendance by the committee for good cause shown. Members of the committee not sitting on the board shall not be required or allowed to attend board disciplinary hearings.

E. A committee member shall not serve more than two full terms on any state-chartered board whose responsibility includes the regulation of practice or licensure of dentistry or dental hygiene in New Mexico. A partial term of three or more years shall be considered a full term.

F. In the event of a vacancy, the secretary of the committee shall immediately notify the governor, the committee and board members and the New Mexico dental hygienists association of the reason for its occurrence and action taken by the committee, so as to expedite appointment of a new committee member.

G. The committee shall meet at least four times every year, and no more than two meetings shall be public rules hearings. Regular meetings shall not be more than one hundred twenty days apart. The committee may also hold special meetings and emergency meetings in accordance with the rules of the board and committee, upon written notification to all members of the committee and the board.

H. Members of the committee shall be reimbursed as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

I. A simple majority of the committee members currently serving shall constitute a quorum, provided at least two of that quorum are not hygienist members and three are hygienist members.

J. The committee shall elect officers annually as deemed necessary to administer its duties and as provided in rules [and regulations] of the board and committee.

K. The committee shall make recommendations to the board, for ratification pursuant to Section 61-5A-11 NMSA 1978, relating to the regulation, examination, licensing, continuing education, scope of practice, standard of care, issuance of investigative subpoenas and discipline of dental hygienists.

L. In accordance with the Uniform Licensing Act, for any cause stated in the Dental Health Care Act, the committee may make its recommendations to the board in matters involving the granting, denial, review, censure, reprimand, fining and placement on probation and stipulation, suspension and revocation of licenses to practice dental hygiene."

SECTION 4. Section 61-5A-10 NMSA 1978 (being Laws 1994, Chapter 55, Section 10, as amended) is amended to read:

"61-5A-10. POWERS AND DUTIES OF THE BOARD [AND COMMITTEE].--In addition to any other authority provided by law, the board [and the committee, when designated] shall:

A. enforce and administer the provisions of the Dental Health Care Act and the Dental Amalgam Waste Reduction Act;

B. adopt, publish, file and revise, in accordance with the Uniform Licensing Act and the State Rules Act, all rules as may be necessary to:

(1) regulate the examination and licensure of dentists, [and, through the committee, regulate the examination and licensure of] dental therapists and dental hygienists;

(2) provide for the examination and certification of dental assistants by the board;

(3) provide for the regulation of dental technicians by the board;

(4) regulate the practice of dentistry, [and] dental assisting, [and, through the committee, regulate the practice of] dental therapy and dental hygiene; and

(5) provide for the regulation and licensure of non-dentist owners by the board;

C. adopt and use a seal;

D. administer oaths to all applicants, witnesses and others appearing before the board or the committee, as appropriate;

E. keep an accurate record of all meetings, receipts and disbursements;

F. grant, deny, review, suspend and revoke licenses and certificates to practice dentistry, dental assisting, [and, through the committee] dental therapy and dental hygiene and censure, reprimand, fine and place on probation and stipulation dentists, dental assistants, [and, through the committee] dental therapists and dental hygienists, in accordance with the Uniform Licensing Act for any cause stated in the Dental Health Care Act and the Dental Amalgam Waste Reduction Act;

G. grant, deny, review, suspend and revoke licenses to own dental practices and censure, reprimand, fine and place on probation and stipulation non-dentist owners, in accordance with the Uniform Licensing Act, for any cause stated in the Dental Health Care Act and the Dental Amalgam Waste Reduction Act;

H. maintain records of the name, address, license number and such other demographic data as may serve the needs of the board of licensees, together with a record of license renewals, suspensions, revocations, probations, stipulations, censures, reprimands and fines. The board shall make available composite reports of demographic data but shall limit public access to information regarding individuals to their names, addresses, license numbers and license actions or as required by statute;

I. hire and contract for services from persons as necessary to carry out the board's duties;

J. establish ad hoc committees whose members shall be appointed by the chair with the advice and consent of the board or committee and shall include at least one member of the board or committee as it deems necessary for carrying on its business;

K. have the authority to pay per diem and mileage to individuals who are appointed by the board or the committee to serve on ad hoc committees;

L. have the authority to hire or contract with investigators to investigate possible violations of the Dental Health Care Act and the Dental Amalgam Waste Reduction Act;

M. have the authority to issue investigative subpoenas prior to the issuance of a notice of contemplated action for the purpose of investigating complaints against dentists, dental assistants, [and, through the committee] dental therapists and dental hygienists licensed under the Dental Health Care Act and the Dental Amalgam Waste Reduction Act;

N. have the authority to sue or be sued and to retain the services of an attorney at law for counsel and representation regarding the carrying out of the board's duties;

O. have the authority to create and maintain a formulary, in consultation with the board of pharmacy, of medications that a dental therapist or dental hygienist may prescribe, administer or dispense in accordance with rules the board has promulgated; and

P. establish continuing education or continued competency requirements for dentists, certified dental assistants in expanded functions, dental technicians, [and, through the committee] dental therapists and dental hygienists."

SECTION 5. A new section of the Dental Health Care Act is enacted to read:

"[NEW MATERIAL] NEW MEXICO DENTAL THERAPIST JOINT COMMITTEE--CREATION--MEMBERSHIP.--

A. There is created the thirteen-member "New Mexico dental therapist joint committee". The joint committee shall consist of thirteen members, including:

(1) five current members of the board who are dentists;

(2) five current members of the New Mexico dental hygienists committee who are dental hygienists;

(3) one dental therapist or dental therapy representative; and

(4) two current public members of the board.

B. The joint committee shall make recommendations to the board, for ratification pursuant to Section 61-5A-11 NMSA 1978, relating to the regulation, examination, licensing, continuing education, scope of practice, standard of care, issuance of investigative subpoenas and discipline of dental therapists.

C. Within thirty days of the effective date of this 2015 act, the governor shall appoint the dental therapist or dental therapy representative member of the joint committee from a list of names submitted by New Mexico health resources, inc., health action New Mexico, a state or regional dental therapists' association or a state institution of higher education that has a dental therapy education program.

D. Appointment of the dental therapist or dental therapy representative member shall be for a term of five years.

E. A quorum at a meeting of the joint committee shall include the dental therapist member or dental therapy representative member of the joint committee.

F. In accordance with the Uniform Licensing Act, for any cause stated in the Dental Health Care Act, the joint committee may make its recommendations to the board in matters involving the granting, denial, review, censure, reprimand, fining and placement on probation and stipulation, suspension and revocation of licenses to practice dental therapy.

G. By August 1, 2015, the joint committee shall recommend for adoption and promulgation by the board rules relating to the practice of dental therapy."

SECTION 6. Section 61-5A-11 NMSA 1978 (being Laws 1994, Chapter 55, Section 11) is amended to read:

"61-5A-11. RATIFICATION OF DENTAL HYGIENIST COMMITTEE RECOMMENDATIONS--JOINT COMMITTEE RECOMMENDATIONS.--

A. The board shall ratify the recommendations of the dental hygienist committee or the joint committee unless the board makes a specific finding that a recommendation is:

(1) beyond the jurisdiction of the dental hygienist committee or the joint committee;

(2) an undue financial impact upon the board; or

(3) not supported by the record.

B. The board shall provide the necessary [expenditures] funding for expenses incurred by the dental hygienist committee, [and] the joint committee or the board in implementing and executing [the] ratified recommendations."

SECTION 7. Section 61-5A-14.1 NMSA 1978 (being Laws 2011, Chapter 113, Section 10) is amended to read:

"61-5A-14.1. PUBLIC-SERVICE LICENSURE.--[The board or the committee may issue a temporary public-service license to practice dentistry or dental hygiene to an applicant who is licensed to practice dentistry or dental hygiene in another state or territory of the United States or who is enrolled as a dental resident in a residency program in this state and the commission on dental accreditation has accredited that program. That applicant shall be otherwise qualified to practice dentistry or dental hygiene in this state. The following provisions shall apply:

A. the applicant for public-service licensure shall hold a valid license in good standing in another state or territory of the United States or be enrolled as a dental resident in a residency program in the state that the commission on dental accreditation has accredited;

B. a temporary public-service license issued to a dental residency student who has not taken and passed a clinical examination accepted by the board shall not be renewed after the student has completed the residency program;

C. the applicant shall practice dentistry or dental hygiene under the sponsorship of or in association with a licensed New Mexico dentist or dental hygienist;

D. the public-service license may be issued for those activities as stipulated by the board or committee in the rules of the board. It may be issued upon written application of the applicant when accompanied by such proof of qualifications as the secretary-treasurer of the board or committee, in the secretary-treasurer's discretion, may require. Public-service licensees shall engage in only those activities specified on the public-service license for the time designated, and the public-service license shall identify the licensed New Mexico dentist or dental hygienist who will sponsor or associate with the applicant during the time the applicant practices dentistry or dental hygiene in New Mexico;

E.] A. The board may issue a temporary public-service license to practice dentistry to an applicant who is licensed to practice dentistry in another state or territory of the United States or who is enrolled as a dental resident in a residency program in the state that the commission on dental accreditation has accredited. The applicant shall be otherwise qualified to practice dentistry in the state. The board shall not renew the temporary public-service license of a dental residency student who has completed the student's residency program. The applicant shall practice dentistry under the sponsorship of or in association with a licensed New Mexico dentist, who shall be identified on the public-service license. A public-service licensee shall engage only in those activities the board specifies on the public-service license. The board may issue the public-service license upon an applicant's written application when accompanied by proof of qualifications as specified in board rules.

B. Upon the recommendation of the joint committee, the board shall issue a temporary public-service license to practice dental therapy to an applicant who is licensed to practice dental therapy in another state or another territory of the United States. The applicant shall be otherwise qualified to practice dental therapy in the state. The applicant shall practice dental therapy under the sponsorship of or in association with a licensed New Mexico dentist, dental therapist or dental hygienist, who shall be identified on the public-service license. A public-service licensee shall engage only in those activities specified on the public-service license. Upon the joint committee's recommendation, the board shall issue the public-service license upon an applicant's written application when accompanied by proof of qualifications as specified in board rules.

C. Upon the recommendation of the committee, the board shall issue a temporary public-service license to practice dental hygiene to an applicant who is licensed to practice dental hygiene in another state or another territory of the United States. The applicant shall be otherwise qualified to practice dental hygiene in the state. The applicant shall practice dental hygiene under the sponsorship of or in association with a licensed New Mexico dentist, dental therapist or dental hygienist, who shall be identified on the public-service license. A public-service licensee shall engage only in those activities specified on the public-service license. Upon the recommendation of the committee, the board shall issue the public-service license upon an applicant's written application when accompanied by proof of qualifications as specified in board rules.

D. The following provisions shall apply to any public-service licensure granted pursuant to this section:

(1) a public-service license shall be valid only for the time designated on the public-service license;

(2) the sponsoring or associating dentist, dental therapist or dental hygienist shall submit an affidavit attesting to the qualifications of the applicant and the activities the applicant will perform; and

[F.] (3) the public-service license shall be issued for a period not to exceed twelve months and may be renewed upon application and payment of required fees.

[G. the] E. An application for a public-service license under this section shall be accompanied by a license fee.

[H. the] F. A public-service licensee shall be required to comply with the Dental Health Care Act and all rules promulgated pursuant to that act. [and

I.] G. A dentist, dental therapist or dental hygienist providing dental care services to a charitable dental care project may provide dental care pursuant to a presumptive temporary public-service license valid for a period of no longer than three days. The dentist, dental therapist or dental hygienist shall be otherwise subject to the provisions of this section and board rules governing public-service licensure. This presumptive temporary public-service license is only valid when:

(1) the dentist, dental therapist or dental hygienist receives no compensation;

(2) the project is sponsored by an entity that meets the board's definition of "entity" and that the board has approved to undertake the charitable project;

(3) the dental care is performed within the limits of the license that the dentist, dental therapist or dental hygienist holds in another jurisdiction;

(4) upon request, the out-of-state dentist, dental therapist or dental hygienist produces any document necessary to verify the dentist's, dental therapist's or dental hygienist's credentials; and

(5) the out-of-state dentist, dental therapist or dental hygienist works under the indirect supervision of a dentist, dental therapist or dental hygienist licensed in this state."

SECTION 8. Section 61-5A-15 NMSA 1978 (being Laws 1994, Chapter 55, Section 15) is amended to read:

"61-5A-15. CONTENT OF [LICENSE] LICENSES AND CERTIFICATES--DISPLAY OF [LICENSE--RENEWALS--RETIRE LICENSE] LICENSES AND CERTIFICATES.--

A. All dental licenses issued by the board shall bear:

(1) a serial number;

(2) the full name of the licensee;

(3) the date of issue;

(4) the seal of the board;

(5) if the license is a specialty license, the specialty to which practice is limited;

(6) the signatures of a majority of the board members; and

(7) the attestation of the board president and secretary.

B. All dental therapist licenses issued by the board shall bear:

(1) a serial number;

(2) the full name of the licensee;

(3) the date of issue;

(4) the seal of the board;

(5) the signatures of a majority of the joint committee members; and

(6) the attestation of the board president and secretary.

[B.] C. All dental hygienist licenses issued by the board shall bear:

(1) a serial number;

(2) the full name of the licensee;

(3) the date of issue;

(4) the seal of the board;

(5) the signatures of a majority of the committee members; and

(6) the attestation of the board president and secretary.

[C.] D. Certificates issued to dental assistants shall bear:

(1) a serial number;

(2) the full name of the assistant;

(3) the date of issue;

(4) the date of expiration;

(5) the expanded functions certified to perform; and

(6) the attestation of the board secretary.

[D.] E. All licenses and certificates shall be displayed in a conspicuous place in the office where the holder practices. The license or certificate shall, upon request, be exhibited to any [of the members] member or authorized agent of the board, the joint committee or the committee [or its authorized agent]."

SECTION 9. Section 61-5A-21 NMSA 1978 (being Laws 1994, Chapter 55, Section 21, as amended) is amended to read:

"61-5A-21. DISCIPLINARY PROCEEDINGS--APPLICATION OF UNIFORM LICENSING ACT.--

A. In accordance with the Uniform Licensing Act and rules of the board, the board [and committee] may fine and may deny, revoke, suspend, stipulate or otherwise limit any license or certificate, including those of licensed non-dentist owners, held or applied for under the Dental Health Care Act, upon findings by the board [or the committee] that the licensee, certificate holder or applicant:

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

(2) has been convicted of a crime punishable by incarceration in a federal prison or state penitentiary; provided a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence of such conviction;

(3) is guilty of gross incompetence or gross negligence, as defined by rules of the board, in the practice of dentistry, dental therapy, dental hygiene or dental assisting;

(4) is habitually intemperate or is addicted to the use of habit-forming drugs or is addicted to any vice to such degree as to render the licensee unfit to practice;

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

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

(7) has violated any provisions of the Dental Health Care Act or rule or regulation of the board [or the committee];

(8) is guilty of willfully or negligently practicing beyond the scope of licensure;

(9) is guilty of practicing dentistry, dental therapy or dental hygiene without a license or aiding or abetting the practice of dentistry, dental therapy or dental hygiene by a person not licensed under the Dental Health Care Act;

(10) is guilty of obtaining or attempting to obtain any fee by fraud or misrepresentation or has otherwise acted in a manner or by conduct likely to deceive, defraud or harm the public;

(11) is guilty of patient abandonment;

(12) is guilty of failing to report to the board any adverse action taken against the licensee by a licensing authority, peer review body, malpractice insurance carrier or other entity as defined in rules of the board [and the committee];

(13) has had a license, certificate or registration to practice as a dentist, dental therapist or dental hygienist revoked, suspended, denied, stipulated or otherwise limited in any jurisdiction, territory or possession of the United States or another country for actions of the licensee similar to acts described in this subsection. A certified copy of the decision of the jurisdiction taking such disciplinary action will be conclusive evidence; or

(14) has failed to furnish the board, its investigators or its representatives with information requested by the board, the joint committee or the committee in the course of an official investigation.

B. Disciplinary proceedings may be instituted by sworn complaint by any person, including a board, joint committee or committee member, and shall conform with the provisions of the Uniform Licensing Act.

[C. Licensees and certificate holders shall bear the costs of disciplinary proceedings unless exonerated.

D. Any 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.

E.] C. Licensees whose licenses are in a probationary status shall pay reasonable expenses for maintaining probationary status, including but not limited to laboratory costs when laboratory testing of biological fluids or accounting costs when audits are included as a condition of probation."

SECTION 10. Section 61-5A-24 NMSA 1978 (being Laws 1994, Chapter 55, Section 24) is amended to read:

"61-5A-24. INJUNCTION TO STOP UNLICENSED DENTAL, DENTAL THERAPY OR DENTAL HYGIENE PRACTICE.--

A. The attorney general, the district attorney, the board, the joint committee, the committee or any citizen of any county where any person practices dentistry, dental therapy or dental hygiene without possessing a valid license to do so may, in accordance with the laws of New Mexico governing injunctions, maintain an action in the name of the state to enjoin such person from practicing dentistry, dental therapy or dental hygiene until a valid license to practice dentistry, dental therapy or dental hygiene is secured [and]. Any person who has been enjoined who violates the injunction shall be punished for contempt of court; provided that the injunction does not relieve any person practicing dentistry, dental therapy or dental hygiene without a valid license from a criminal prosecution [therefore] as provided by law.

B. In charging any person in a complaint for injunction, or in an affidavit, information or indictment with practicing dentistry, dental therapy or dental hygiene without a valid license, it is sufficient to charge that the person did, upon a certain day and in a certain county, engage in the practice of dentistry, dental therapy or dental hygiene without a valid license, without averring any further or more particular facts concerning the same."

SECTION 11. A new section of the Dental Health Care Act is enacted to read:

"[NEW MATERIAL] DENTAL THERAPY PRACTICE--SCOPE OF PRACTICE.--

A. As used in the Dental Health Care Act, "dental therapy practice" means the application of the science of the prevention and treatment of oral disease through education, prevention, assessment, diagnosis and clinical and other therapeutic services under the general supervision of a dentist. "Dental therapy practice" includes the practice of dental hygiene, as provided in Subsection B of Section 61-5A-4 NMSA 1978, and:

(1) behavioral management, oral health instruction and disease prevention education, including nutritional counseling and dietary analysis;

(2) diagnosis of dental disease and the formulation of an individualized treatment plan, including caries risk assessment;

(3) preliminary charting of the oral cavity;

(4) prescribing, exposing and interpreting radiographs;

(5) mechanical polishing of teeth and restorations;

(6) application of topical preventive or prophylactic agents, including fluoride varnishes and pit and fissure sealants;

(7) pulp vitality testing;

(8) application of desensitizing medication or resin;

(9) fabrication of athletic mouthguards;

(10) placement of temporary restoration;

(11) tissue conditioning and soft reline;

(12) traumatic restorative therapy;

(13) dressing changes;

(14) emergency replacement and stabilization of an avulsed or dislodged tooth to prevent the unintended loss of a tooth or teeth;

(15) administration of local anesthetic;

(16) extractions of primary teeth;

(17) extractions of permanent teeth that are not impacted and that do not need sectioning or an incision for removal;

(18) emergency palliative treatment of dental pain;

(19) placement and removal of space maintainers;

(20) cavity preparation;

(21) restoration of primary and permanent teeth;

(22) placement of temporary crowns;

(23) preparation and placement of pre-formed crowns;

(24) pulpotomy of primary teeth;

(25) indirect and direct pulp capping on primary and permanent teeth;

(26) suture removal;

(27) brush biopsies;

(28) simple repairs and adjustments to removable prosthetic appliances;

(29) re-cementing of permanent crowns;

(30) prevention of potential orthodontic problems by early identification and appropriate referral;

(31) prevention, identification and management of dental and medical emergencies and maintenance of current basic life-support certification;

(32) dispensing and administration of analgesics, anti-inflammatory medications and antibiotics only within the parameters of a dental therapist management agreement; and

(33) other related services as permitted by board rules.

B. A dental therapist shall practice under the general supervision of a dentist pursuant to a written supervision agreement between the dentist and the dental therapist. A dentist providing general supervision of a dental therapist shall supervise no more than four dental therapists at one time. The board shall adopt and promulgate rules to establish minimum requirements for dental therapist management agreements.

C. General supervision of a dental therapist

by a dentist includes communication between the dental therapist and dentist by use of telehealth.

D. A dental therapist may provide dental therapy services in private and public dental and medical offices, public and community medical facilities, federal Indian health service facilities, schools, hospitals and long-term care facilities and other settings located in dental health professional shortage areas as established in rules that the board has adopted and promulgated.

E. After five consecutive years of employment with the same employer as a dental therapist, fifteen percent of the patients that the dental therapist serves shall be medicaid recipients.

F. To practice under the general supervision of a dentist, a dental therapist shall enter into a dental therapist management agreement with a dentist. The dental therapist management agreement shall set forth the scope of practice and conditions under which the dentist will provide general supervision of the dental therapist. A dental therapist management agreement shall not be subject to board or joint committee approval. The dental therapist management agreement shall be:

(1) submitted annually to the joint committee; and

(2) signed and maintained by the dentist and dental therapist.

G. A dentist and a dental therapist shall notify the joint committee upon the dissolution of their dental therapist management agreement.

H. A dental therapist may supervise under direct or indirect supervision dental assistants and dental hygienists. The dental therapist management agreement shall set forth the scope of practice and conditions under which the dental therapist may supervise dental assistants and dental hygienists."

SECTION 12. A new section of the Dental Health Care Act is enacted to read:

"[NEW MATERIAL] DENTAL THERAPISTS--LICENSURE--UNAUTHORIZED PRACTICE--IMPAIRED LICENSEES--DISCIPLINE--PENALTIES.--

A. To be licensed as a dental therapist, an applicant shall:

(1) be licensed as a dental hygienist;

(2) have passed a written examination covering the laws and rules for practice in the state; and

(3) have submitted, to the joint committee for its approval and recommendation, proof:

(a) of graduation and receipt of a degree from a dental therapy education program that provides a competency-based curriculum, developed in partnership with an accredited institution of higher education;

(b) of passage of a competency-based examination given by a nationally recognized regional testing agency if available or, if not available, by an institution of higher education with a dental therapy education program; and

(c) after graduation from a dental therapist competency-based education program, of having completed a minimum of four hundred additional clinical hours under the indirect supervision of a dentist.

B. Upon notification from the dental therapy education program that the dental therapist applicant has graduated from the education program and passed the competency-based examination, the board, in accordance with the joint committee's recommendation, shall issue a permit for the applicant to practice during the applicant's requirement to complete four hundred additional clinical hours pursuant to Subparagraph (c) of Paragraph (3) of Subsection A of this section.

C. In accordance with the joint committee's recommendation, the board shall issue a license to practice as a dental therapist without a practical or clinical examination to an applicant who is a licensed dental therapist by examination under the laws of another state or territory of the United States; provided that:

(1) the applicant's dental therapy license has been in good standing in that jurisdiction for the two years immediately preceding the application for licensure;

(2) the applicant has a valid license to practice dental hygiene in that jurisdiction; and

(3) the applicant meets the requirements relating to licensure as a dental therapist pursuant to the Dental Health Care Act, including payment of appropriate fees and passing of an examination covering the laws and rules of practice in the state.

D. After an applicant has met the qualifications set forth in Subsections A through C of this section, the board, in accordance with the joint committee's recommendation, shall issue the applicant a license to practice as a dental therapist.

E. A dental therapist shall renew the dental therapist's license triennially in accordance with board rules.

F. A person who practices as a dental therapist or who attempts to practice as a dental therapist in violation of the provisions of the Dental Health Care Act or without a license entitling the person to practice as a dental therapist in the state is guilty of a misdemeanor pursuant to Section

31-19-1 NMSA 1978. Each occurrence of practicing as a dental therapist or attempting to practice as a dental therapist without complying with the Dental Health Care Act shall be a separate violation.

G. Nothing in this section shall preclude an individual from pursuing a degree in a combined dental therapy and dental hygiene education program.

H. By August 1, 2015, the joint committee shall establish rules relating to the practice of dental therapy in accordance with the Dental Health Care Act. By December 31, 2015, the board shall ratify, adopt and promulgate the rules the joint committee has established pursuant to this section, unless the board finds good cause not to ratify the rules that the joint committee recommends because the rules:

(1) are beyond the jurisdiction of the committee;

(2) will impose an undue financial impact upon the board; or

(3) are not supported by the record.

I. In the event that the board has failed, without good cause as described in Subsection H of this section, by December 31, 2015 to ratify, adopt and promulgate rules the joint committee has established pursuant to this section, the board shall be deemed to have adopted and shall promulgate those rules.

J. The joint committee shall establish, and, unless it finds due cause in accordance with the provisions of Subsection H of this section, the board shall ratify, adopt and promulgate rules to provide for the expedited issuance of a dental therapy license to an applicant after that applicant has received a license to practice dental hygiene.

K. For purposes of this section, "entity" means a corporation, business trust, estate, trust, partnership, limited liability company, association, organization, joint venture or any legal or commercial entity. As used in the Dental Health Care Act, "entity" excludes an individual or natural person."

SECTION 13. A new section of the Dental Health Care Act is enacted to read:

"[NEW MATERIAL] FEES.--In accordance with the provisions of Section 61-5A-11 NMSA 1978, the board shall establish a schedule of fees for dental therapists that shall be equivalent to fifty percent of the fees established for dental hygienists pursuant to Section 61-5A-20 NMSA 1978."

SECTION 14. Section 7-9-93 NMSA 1978 (being Laws 2004, Chapter 116, Section 6, as amended) is amended to read:

"7-9-93. DEDUCTION--GROSS RECEIPTS--CERTAIN RECEIPTS FOR SERVICES PROVIDED BY HEALTH CARE PRACTITIONER.--

A. Receipts from payments by a managed health care provider or health care insurer for commercial contract services or medicare part C services provided by a health care practitioner that are not otherwise deductible pursuant to another provision of the Gross Receipts and Compensating Tax Act may be deducted from gross receipts, provided that the services are within the scope of practice of the person providing the service. Receipts from fee-for-service payments by a health care insurer may not be deducted from gross receipts. The deduction provided by this section shall be separately stated by the taxpayer.

B. For the purposes of this section:

(1) "commercial contract services" means health care services performed by a health care practitioner pursuant to a contract with a managed health care provider or health care insurer other than those health care services provided for medicare patients pursuant to Title 18 of the federal Social Security Act or for medicaid patients pursuant to Title 19 or Title 21 of the federal Social Security Act;

(2) "health care insurer" means a person that:

(a) has a valid certificate of authority in good standing pursuant to the New Mexico Insurance Code to act as an insurer, health maintenance organization or nonprofit health care plan or prepaid dental plan; and

(b) contracts to reimburse licensed health care practitioners for providing basic health services to enrollees at negotiated fee rates;

(3) "health care practitioner" means:

(a) a chiropractic physician licensed pursuant to the provisions of the Chiropractic Physician Practice Act;

(b) a dentist, dental therapist or dental hygienist licensed pursuant to the Dental Health Care Act;

(c) a doctor of oriental medicine licensed pursuant to the provisions of the Acupuncture and Oriental Medicine Practice Act;

(d) an optometrist licensed pursuant to the provisions of the Optometry Act;

(e) an osteopathic physician licensed pursuant to the provisions of Chapter 61, Article 10 NMSA 1978 or an osteopathic physician's assistant licensed pursuant to the provisions of the Osteopathic Physicians' Assistants Act;

(f) a physical therapist licensed pursuant to the provisions of the Physical Therapy Act;

(g) a physician or physician assistant licensed pursuant to the provisions of Chapter 61, Article 6 NMSA 1978;

(h) a podiatrist licensed pursuant to the provisions of the Podiatry Act;

(i) a psychologist licensed pursuant to the provisions of the Professional Psychologist Act;

(j) a registered lay midwife registered by the department of health;

(k) a registered nurse or licensed practical nurse licensed pursuant to the provisions of the Nursing Practice Act;

(l) a registered occupational therapist licensed pursuant to the provisions of the Occupational Therapy Act;

(m) a respiratory care practitioner licensed pursuant to the provisions of the Respiratory Care Act;

(n) a speech-language pathologist or audiologist licensed pursuant to the Speech-Language Pathology, Audiology and Hearing Aid Dispensing Practices Act;

(o) a professional clinical mental health counselor, marriage and family therapist or professional art therapist licensed pursuant to the provisions of the Counseling and Therapy Practice Act who has obtained a master's degree or a doctorate;

(p) an independent social worker licensed pursuant to the provisions of the Social Work Practice Act; and

(q) a clinical laboratory that is accredited pursuant to 42 U.S.C. Section 263a but that is not a laboratory in a physician's office or in a hospital defined pursuant to 42 U.S.C. Section 1395x;

(4) "managed health care provider" means a person that provides for the delivery of comprehensive basic health care services and medically necessary services to individuals enrolled in a plan through its own employed health care providers or by contracting with selected or participating health care providers. "Managed health care provider" includes only those persons that provide comprehensive basic health care services to enrollees on a contract basis, including the following:

(a) health maintenance organizations;

(b) preferred provider organizations;

(d) competitive medical plans;

(e) exclusive provider organizations;

(f) integrated delivery systems;

(g) independent physician-provider organizations;

(h) physician hospital-provider organizations; and

(i) managed care services organizations; and

(5) "medicare part C services" means services performed pursuant to a contract with a managed health care provider for medicare patients pursuant to Title 18 of the federal Social Security Act."

SECTION 15. 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 doses of one milliliter or less of the product and, following the injection of nonfatal doses into an animal, having the property of 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 other animals; and

(4) intended for use as a component of Paragraph (1), (2) or (3) of this subsection, but "drug" 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 or drug order 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 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 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 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 certified advanced practice chiropractic physician, physician, doctor of oriental medicine, dentist, veterinarian, euthanasia technician, certified nurse practitioner, clinical nurse specialist, pharmacist, pharmacist clinician, certified nurse-midwife, physician assistant, prescribing psychologist, dental therapist, dental hygienist 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 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 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 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 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", "certified advanced practice chiropractic physician", "doctor of oriental medicine", "dentist", "veterinarian", "euthanasia technician", "certified nurse practitioner", "clinical nurse specialist", "pharmacist", "pharmacist clinician", "certified nurse-midwife", "dental therapist" or "dental hygienist" 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;

AA. "pedigree" means the recorded history of a drug; and

BB. "drug order" means an order 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 licensed practitioner or the practitioner's agent, and bearing the name and address of the practitioner and the practitioner's license classification and the name and quantity of the drug or device ordered for use at an inpatient or outpatient facility."

SECTION 16. Section 27-2-12 NMSA 1978 (being Laws 1973, Chapter 376, Section 16, as amended) is amended to read:

"27-2-12. MEDICAL ASSISTANCE PROGRAMS.--

A. Consistent with the federal act and subject to the appropriation and availability of federal and state funds, the medical assistance division of the department may by rule provide medical assistance, including the services of licensed doctors of oriental medicine, licensed chiropractic physicians, licensed dental therapists and licensed dental hygienists in collaborating practice, to persons eligible for public assistance programs under the federal act.

B. Subject to appropriation and availability of federal, state or other funds received by the state from public or private grants or donations, the medical assistance division of the department may by rule provide medical assistance, including assistance in the payment of premiums for medical or long-term care insurance, to children up to the age of twelve if not part of a sibling group; children up to the age of eighteen if part of a sibling group that includes a child up to the age of twelve; and pregnant women who are residents of the state of New Mexico and who are ineligible for public assistance under the federal act. The department, in implementing the provisions of this subsection, shall:

(1) establish rules that encourage pregnant women to participate in prenatal care; and

(2) not provide a benefit package that exceeds the benefit package provided to state employees."

SECTION 17. Section 59A-22-32 NMSA 1978 (being Laws 1984, Chapter 127, Section 454, as amended) is amended to read:

"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, dental hygienist, dental therapist 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, certified nurse-midwife, registered lay midwife, dental hygienist, dental therapist 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;

(d) Chapter 61, Article 10 NMSA 1978; and

(e) the Acupuncture and Oriental Medicine Practice Act;

(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 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] specialty and is certified by a national nursing organization;

(10) "dental hygienist" means an individual licensed to practice dental hygiene pursuant to the Dental Health Care Act; and

(11) "dental therapist" means an individual licensed to practice dental therapy pursuant to the Dental Health Care Act.

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 18. Section 59A-47-28.4 NMSA 1978 (being Laws 2003, Chapter 343, Section 4) is amended to read:

"59A-47-28.4. COVERAGE FOR DENTAL THERAPISTS AND COLLABORATIVE PRACTICE DENTAL HYGIENISTS.--An individual or group subscriber contract delivered or issued for delivery in New Mexico that, on a prepaid, service or indemnity basis, provides for treatment of persons for the prevention, cure or correction of any illness or physical or mental condition shall include coverage for the services of a dental therapist and of a dental hygienist in a collaborative practice pursuant to the Dental Health Care Act."

SECTION 19. Section 61-5B-1 NMSA 1978 (being Laws 1994, Chapter 55, Section 30) is amended to read:

"61-5B-1. SHORT TITLE.--[Sections 31 through 41 of this act] Chapter 61, Article 5B NMSA 1978 shall be cited as the "Impaired [Dentists and] Dental [Hygienists] Professionals Act"."

SECTION 20. Section 61-5B-2 NMSA 1978 (being Laws 1994, Chapter 55, Section 31, as amended) is amended to read:

"61-5B-2. DEFINITIONS.--As used in the Impaired [Dentists and] Dental [Hygienists] Professionals Act:

A. "board" means the New Mexico board of dental health care;

B. "dental hygienists committee" means the New Mexico dental hygienists committee;

C. "dental therapy representative" means an individual who:

(1) publicly supports or recommends the practice of dental therapy in the state;

(2) has knowledge of the practice of dental therapy or of the educational or licensing requirements for the practice of dental therapy; and

(3) has been nominated by a representative of:

(a) New Mexico health resources, inc.;

(b) health action New Mexico;

(d) an institution of higher education located in New Mexico that has a dental therapist education program;

[C.] D. "dentistry, dental therapy or dental hygiene" means the practice of dentistry, dental therapy or dental hygiene; [and]

E. "joint committee" means the New Mexico dental therapist joint committee that makes recommendations to the board relating to the regulation of the practice of dental therapy and licensure of dental therapists; and

[D.] F. "licensee" means a dentist, dental therapist or dental hygienist licensed by the board."

SECTION 21. Section 61-5B-3 NMSA 1978 (being Laws 1994, Chapter 55, Section 32) is amended to read:

"61-5B-3. GROUNDS FOR RESTRICTION, SUSPENSION, REVOCATION, STIPULATION OR OTHER LIMITATION OF LICENSE OR CERTIFICATE.--The license of any [dentist or dental hygienist] licensee to practice dentistry, dental therapy or dental hygiene, or the certificate of a dental assistant to practice dental assisting, in this state shall be subject to restriction, suspension, revocation or stipulation or may otherwise be limited in case of inability of the licensee or certificate holder to practice with reasonable skill and safety to patients by reason of one or more of the following:

A. mental illness;

B. physical illness, including but not limited to deterioration through the aging process or loss of motor skills;

C. habitual or excessive use or abuse of drugs, as defined in the Controlled Substances Act; or

D. habitual or excessive use or abuse of alcohol."

SECTION 22. Section 61-5B-4 NMSA 1978 (being Laws 1994, Chapter 55, Section 33) is amended to read:

"61-5B-4. BOARD, JOINT COMMITTEE OR DENTAL HYGIENISTS COMMITTEE--ADDITIONAL POWERS AND DUTIES AS RELATED TO THE IMPAIRED [DENTISTS AND] DENTAL [HYGIENISTS] PROFESSIONALS ACT.--

A. If the board, joint committee or dental hygienists committee has reasonable cause to believe that a [person licensed to practice dentistry or dental hygiene] licensee is unable to practice with reasonable skill and safety to patients because of a condition described in the Impaired [Dentists and] Dental [Hygienists] Professionals Act, the board shall cause an examination of [such] the licensee to be made and shall, following the examination, take appropriate action within the provisions of the Impaired [Dentists and] Dental [Hygienists] Professionals Act.

B. Examination of a licensee pursuant to an order of the board shall be conducted by an examining committee designated by the board. [Each examining committee shall be composed of two duly licensed dentists, or two duly licensed dental hygienists if the licensee is a dental hygienist, and two duly licensed physicians, one of whom shall be a psychiatrist who is knowledgeable and experienced in the field of chemical dependency if a question of mental illness or dependency is involved. Whenever possible, examining committee members shall be selected for their knowledge or experience in the areas of alcoholism, chemical dependency, mental health and geriatrics and may be rehabilitated impaired dentists, dental hygienists or physicians. In designating the members of such examining committee, the board may consider nominations from the New Mexico dental association for the dentist member, the New Mexico dental hygienists' association for dental hygiene members thereof and nomination from the New Mexico medical society for the physician members thereof. No current members of the board, dental hygienists committee or New Mexico board of medical examiners shall be designated as a member of an examining committee.] An examining committee shall be composed of two licensed physicians, one of whom shall be a psychiatrist who is knowledgeable and experienced in the field of chemical dependency if a question of mental illness or dependency is involved. An examining committee shall also include additional members in the following manner:

(1) if the licensee is a dentist, the examining committee shall include two licensed dentists;

(2) if the licensee is a dental therapist, the examining committee shall include two licensed dental therapists or two dental therapy representatives; and

(3) if the licensee is a dental hygienist, the examining committee shall include two licensed dental hygienists.

C. Whenever possible, examining committee members shall be selected for their knowledge of or experience in the areas of alcoholism, chemical dependency, mental health and geriatrics. Members of the examining committee may be rehabilitated impaired dentists, dental therapists, dental hygienists or physicians.

D. In designating the members of an examining committee, the licensing authority may consider nominations from the New Mexico medical society for physician members and nominations from the following entities:

(1) for dentist members, from the New Mexico dental association;

(2) for dental therapist members, a state or regional dental therapists' association, if available, or a dental therapy education program located in the state; and

(3) for dental hygienist members, the New Mexico dental hygienists' association.

E. A current member of the board, the joint committee, the dental hygienists committee or the New Mexico board of medical examiners shall not be designated as a member of an examining committee."

SECTION 23. Section 61-5B-5 NMSA 1978 (being Laws 1994, Chapter 55, Section 34) is amended to read:

"61-5B-5. EXAMINATION BY COMMITTEE.--

A. The examining committee assigned to examine a licensee pursuant to referral by the board shall conduct an examination of the licensee for the purpose of determining the fitness of the licensee to practice dentistry, dental therapy or dental hygiene with reasonable skill and safety to patients, either on a restricted or unrestricted basis, and shall report its findings and recommendations to the board. The findings and recommendations shall be based on findings by the examining committee that the licensee examined possesses one or more of the impairments set forth in the Impaired [Dentists and] Dental [Hygienists] Professionals Act and [such] the impairment does, in fact, affect the ability of the licensee to skillfully and safely practice dentistry, dental therapy or dental hygiene. The examining committee shall order the licensee to appear before it for a hearing and give the licensee fifteen days' notice of the time and place of the hearing, together with a statement of the cause for [such examination] the hearing. The notice shall be served upon the licensee either personally or by registered or certified mail with return receipt requested.

B. If the examining committee, in its discretion, deems a mental or physical examination of the licensee necessary to its determination of the fitness of the licensee to practice, the examining committee shall order the licensee to submit to [such] the examination. Any [person licensed to practice dentistry or dental hygiene] licensee in this state shall, by so practicing or by making or filing an annual registration to practice dentistry, dental therapy or dental hygiene in this state, be deemed to have:

(1) given consent to submit to mental or physical examination when so directed by the examining committee; and

(2) waived all objections to the admissibility of the report of the examining committee to the board, the joint committee or the dental hygienists committee on the grounds of privileged communication.

C. Any licensee who submits to a diagnostic mental or physical examination as ordered by the examining committee shall have a right to designate an accompanying individual to be present at the examination and make an independent report to the board.

D. Failure of a licensee to comply with an examining committee order under Subsection B of this section to appear before it for hearing or to submit to mental or physical examination under this section shall be reported by the examining committee to the board, the joint committee or the dental hygienists committee and, unless due to circumstances beyond the control of the licensee, shall be grounds for the immediate and summary suspension by the board [of the licensee] to practice dentistry, dental therapy or dental hygiene in this state until further order of the board."

SECTION 24. Section 61-5B-6 NMSA 1978 (being Laws 1994, Chapter 55, Section 35) is amended to read:

"61-5B-6. VOLUNTARY RESTRICTION OF LICENSURE.--

A. A licensee may request in writing to the board a restriction to practice under [his] the licensee's existing license, and the board [and the dental hygienists committee] shall have authority, if [it deems] deemed appropriate, to attach stipulations to the licensure of the licensee to practice dentistry, dental therapy or dental hygiene within specified limitations and waive the commencement of [any] a proceeding. Removal of a voluntary restriction on licensure to practice dentistry, dental therapy or dental hygiene shall be subject to the procedure for reinstatement of license. As a condition for accepting such voluntary limitation of practice, the board may require [each] the licensee to:

(1) agree to and accept care, counseling or treatment of physicians or other appropriate health care providers acceptable to the board;

(2) participate in a program of education prescribed by the board; or

(3) practice under the direction of a dentist acceptable to the board for a specified period of time.

B. Subject to the provisions of the Impaired [Dentists and] Dental [Hygienists] Professionals Act, a violation of any of the conditions of the voluntary limitation of practice statement by [such] the licensee shall be due cause for the refusal of renewal, or the suspension or revocation, of the license by the board."

SECTION 25. Section 61-5B-7 NMSA 1978 (being Laws 1994, Chapter 55, Section 36) is amended to read:

"61-5B-7. REPORT TO THE BOARD, JOINT COMMITTEE OR DENTAL HYGIENISTS COMMITTEE--ACTION.--

A. The examining committee shall report to the board, joint committee or the dental hygienists committee its findings on the examination of the licensee, the determination of the examining committee as to the fitness of the licensee to engage in the practice of dentistry, dental therapy or dental hygiene with reasonable skill and safety to patients, either on a restricted or unrestricted basis, and any intervention that the examining committee may recommend. Such recommendation by the examining committee shall be advisory only and shall not be binding on the board.

B. The board, joint committee or dental hygienists committee may accept or reject the recommendation of the examining committee to permit a licensee to continue to practice with or without any restriction on [his] the licensee's licensure to practice dentistry, dental therapy or dental hygiene or may refer the matter back to the examining committee for further examination [and report thereon].

C. In the absence of a voluntary agreement by a licensee for restriction of the licensure of the dentist, dental therapist or the dental hygienist to practice dentistry or dental hygiene, [any] the licensee shall be entitled to a hearing before the board under and in accordance with the procedure contained in the Uniform Licensing Act and a determination on the evidence as to whether [or not] restriction, suspension or revocation of licensure shall be imposed."

SECTION 26. Section 61-5B-8 NMSA 1978 (being Laws 1994, Chapter 55, Section 37) is amended to read:

"61-5B-8. PROCEEDINGS.--

A. The board may formally proceed against a licensee under the Impaired [Dentists and] Dental [Hygienists] Professionals Act in accordance with the procedures contained in the Uniform Licensing Act.

B. When the licensee being considered for action is a dental hygienist, the board shall act upon recommendation of the dental hygienists committee on all aspects of procedures in the Impaired [Dentists and] Dental [Hygienists] Professionals Act.

C. When the licensee being considered for action is a dental therapist, the board shall act upon recommendation of the joint committee on all aspects of procedures pursuant to the Impaired Dental Professionals Act.

[C.] D. At the conclusion of [the] a hearing conducted pursuant to the Impaired Dental Professionals Act, the board [or the dental hygienists committee] shall make the following findings:

(1) whether [or not] the licensee is impaired by one of the grounds for restriction, suspension or revocation listed [herein] in Section 61-5B-3 NMSA 1978;

(2) whether [or not such] the impairment does in fact limit the ability of the licensee to practice dentistry, dental therapy or dental hygiene skillfully and safely; and

(3) to what extent [such] the impairment limits the ability of the licensee to practice dentistry, dental therapy or dental hygiene skillfully and safely and whether the board [or dental hygienists committee] finds that [such] the impairment is such that the license should be suspended, revoked or restricted in the licensee's practice of dentistry, dental therapy or dental hygiene. [and;

(4)] D. If the finding recommends suspension or restriction of the ability of the licensee to practice dentistry, dental therapy or dental hygiene, [then] the board shall make specific recommendations as to the length and nature of the suspension or restriction and shall recommend how [such] the suspension or restriction shall be carried out and supervised.

[D.] E. At the conclusion of the hearing, the board [or the dental hygienists committee] shall make a determination of the merits and may order one or more of the following:

(1) placement of the licensee on probation on such terms and conditions as it deems proper for the protection of the public;

(2) suspension or restriction of the license of the licensee to practice dentistry, dental therapy or dental hygiene for the duration of the licensee's impairment;

(3) revocation of the license of the licensee to practice dentistry, dental therapy or dental hygiene; or

(4) reinstatement of the license of the licensee to practice dentistry, dental therapy or dental hygiene without restriction.

[E.] F. The board may temporarily suspend the license of any licensee without a hearing, simultaneously with the institution of proceedings under the Uniform Licensing Act, if it finds that the evidence in support of the determination of the examining committee is clear and convincing and that continuation in practice would constitute an imminent danger to public health and safety.

[F.] G. Neither the record of the proceeding nor any order entered against a licensee may be used against the licensee in any other legal proceeding except upon judicial review."

SECTION 27. Section 61-5B-9 NMSA 1978 (being Laws 1994, Chapter 55, Section 38) is amended to read:

"61-5B-9. REINSTATEMENT OF LICENSE.--

A. A licensee whose licensure has been restricted, suspended or revoked under the Impaired [Dentists and] Dental [Hygienists] Professionals Act, voluntarily or by action of the board, shall have a right at reasonable intervals to petition for reinstatement of the license and to demonstrate that the licensee can resume the competent practice of dentistry, dental therapy or dental hygiene with reasonable skill and safety to patients.

B. The petition shall be made in writing. If the licensee is a dental hygienist, the dental hygienists committee shall be advised and given all information [so that their] that the dental hygienists committee requests to inform its decision. The dental hygienists committee shall provide its recommendation [can be given] to the board for ratification.

C. If the licensee is a dental therapist, the joint committee shall be advised and given all information that the joint committee requests to inform its decision.

The joint committee shall provide its recommendation to the board for ratification in accordance with the provisions of Section 61-5A-11 NMSA 1978.

[C.] D. Action of the board on [the] a petition for reinstatement shall be initiated by referral to and examination by [the] an examining committee.

[D.] E. The board may, in its discretion, upon written recommendation of the examining committee, restore the licensure of the licensee on a general or limited basis."

SECTION 28. Section 61-5B-10 NMSA 1978 (being Laws 1994, Chapter 55, Section 39) is amended to read:

"61-5B-10. IMPAIRED DENTISTS, DENTAL THERAPISTS AND DENTAL HYGIENISTS TREATMENT PROGRAM.--

A. The board has the authority to enter into an agreement with a nonprofit corporation to implement an impaired dentists, dental therapists and dental hygienists treatment program.

B. For the purposes of this section:

(1) "dental therapist" means an individual licensed to perform dental therapy pursuant to the provisions of the Dental Health Care Act; and

(2) "impaired dentists, dental therapists and dental hygienists treatment program" means a program of care and rehabilitation services provided by those organizations authorized by the board to provide for the [detention] detection, intervention and monitoring of an impaired [dentist or dental hygienist] licensee."

SECTION 29. Section 61-5B-11 NMSA 1978 (being Laws 1994, Chapter 55, Section 40) is amended to read:

"61-5B-11. IMPAIRED [DENTISTS AND] DENTAL [HYGIENISTS] PROFESSIONALS FUND CREATED.--

A. There is created an "impaired [dentists and] dental [hygienist] professionals fund".

B. The fund shall be initially established by an assessment to all licensees as determined by the board, the joint committee and the dental hygienists committee.

C. All [funds] money received by the board for an impaired assessment, either special or at time of relicensure, shall be deposited with the state treasurer. The state treasurer shall credit this money to the [impaired dentists and dental hygienists] fund.

D. Payments out of the fund shall be [on] made pursuant to vouchers issued and signed by the secretary-

treasurer of the board upon warrants drawn by the department of finance and administration [in accordance with the responsibilities of the board] as approved by that department.

E. All amounts paid into the fund are subject to the order of the board and are to be used only for meeting necessary expenses incurred in executing the provisions and duties of the Impaired [Dentists and] Dental [Hygienists] Professionals Act. All money unused at the end of any fiscal year shall remain in the fund for use in accordance with provisions of the Impaired [Dentists and] Dental [Hygienists] Professionals Act.

F. Licensees shall be assessed an impaired fee at the time of renewal. The amount of the impaired fee shall be determined by the board, the joint committee and the dental hygienists committee and shall be established to meet the need for enforcing the Impaired [Dentists and] Dental [Hygienists] Professionals Act.

G. The fund shall be used for the purpose of administration, testing, monitoring, hearings and consultation fees by the board, the joint committee or the dental hygienists committee or [their] its agent, which are necessary to enforce the Impaired [Dentists and] Dental [Hygienists] Professionals Act. It is not the purpose of the fund to pay for treatment of impaired dentists, [and] dental therapists or dental hygienists."

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