SENATE BILL 9

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Mary Kay Papen

AN ACT

RELATING TO HEALTH CARE; UPDATING PROVISIONS OF THE PROFESSIONAL PSYCHOLOGIST ACT RELATING TO PRESCRIBING PSYCHOLOGISTS AND PSYCHOLOGISTS WITH A CONDITIONAL PRESCRIPTION CERTIFICATE; REPEALING A SECTION OF THE PROFESSIONAL PSYCHOLOGIST ACT TO ELIMINATE THE PURPOSE SECTION; DECLARING AN EMERGENCY.

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

     SECTION 1. Section 61-9-3 NMSA 1978 (being Laws 1963, Chapter 92, Section 3, as amended) is amended to read:

     "61-9-3. DEFINITIONS.--As used in the Professional Psychologist Act:

          A. "board" means the New Mexico state board of psychologist examiners;

          B. "conditional prescription certificate" means a document issued by the board to a licensed psychologist that permits the holder to prescribe psychotropic medication under the supervision of a [licensed physician] supervising clinician pursuant to the Professional Psychologist Act;

          C. "independently licensed prescribing clinician" means a licensed physician, osteopathic physician, nurse practitioner, psychiatric nurse practitioner or clinical nurse specialist;

          [C.] D. "person" includes an individual, firm, partnership, association or corporation;

          [D.] E. "prescribing psychologist" means a licensed psychologist who holds a valid prescription certificate;

          [E.] F. "prescription certificate" means a document issued by the board to a licensed psychologist that permits the holder to prescribe psychotropic medication pursuant to the Professional Psychologist Act;

          [F.] G. "psychotropic medication" means a controlled substance or dangerous drug that may not be dispensed or administered without a prescription and whose primary indication for use has been approved by the federal food and drug administration for the treatment of mental disorders [and] or is listed as a psychotherapeutic agent in Drug Facts and Comparisons 2017, or the most recent edition of that book, or in [the] American Hospital Formulary Service Drug Information;

          [G.] H. "psychologist" means a person who engages in the practice of psychology or holds [himself] the person's self out to the public by any title or description of services representing [himself] the person as a psychologist, which incorporates the words "psychological", "psychologist", "psychology", or when a person describes [himself] the person's self as above and, under such title or description, offers to render or renders services involving the application of principles, methods and procedures of the science and profession of psychology to persons for compensation or other personal gain;

          [H.] I. "practice of psychology" means the observation, description, evaluation, interpretation and modification of human behavior by the application of psychological principles, methods and procedures for the purpose of preventing or eliminating symptomatic, maladaptive or undesired behavior and of enhancing interpersonal relationships, work and life adjustment, personal effectiveness, behavioral health and mental health, and further means the rendering of such psychological services to individuals, families or groups regardless of whether payment is received for services rendered. The practice of psychology includes psychological testing or neuropsychological testing and the evaluation or assessment of personal characteristics such as intelligence, personality, abilities, interests, aptitudes and neuropsychological functioning; counseling, psychoanalysis, psychotherapy, hypnosis, biofeedback, behavior analysis and therapy; diagnosis and treatment of [any] a mental and emotional disorder or disability, alcoholism and substance abuse, disorders of habit or conduct and the psychological aspects of physical illness, accident, injury and disability; and psychoeducational evaluation, therapy, remediation and consultation; [and

          I.] J. "school" or "college" means a university or other institution of higher education that is regionally accredited and that offers a full-time graduate course of study in psychology as defined by rule of the board or that is approved by the American psychological association; and

          K. "supervising clinician" means a licensed physician, osteopathic physician, nurse practitioner, psychiatric nurse practitioner or clinical nurse specialist who is supervising a psychologist in the prescribing of psychotropic medication."

     SECTION 2. Section 61-9-10 NMSA 1978 (being Laws 1963, Chapter 92, Section 9, as amended) is amended to read:

     "61-9-10. LICENSURE OF PSYCHOLOGISTS FROM OTHER AREAS--RECIPROCITY.--Subject to the provisions of Section 61-9-10.1 NMSA 1978, upon application accompanied by a fee as required by the Professional Psychologist Act, the board may, without written or oral examination, issue a license to a person who furnishes, upon a form and in such manner as the board prescribes, evidence satisfactory to the board that the person has been licensed or certified as a psychologist or prescribing psychologist by another state, a territorial possession of the United States, the District of Columbia or another country for a minimum of five years. An applicant seeking reciprocity shall demonstrate to the satisfaction of the board that the training and education received by the applicant is equivalent to the requirements for a doctoral degree in psychology as provided in the Professional Psychologist Act."

     SECTION 3. Section 61-9-13 NMSA 1978 (being Laws 1963, Chapter 92, Section 12, as amended) is amended to read:

     "61-9-13. DENIAL, REVOCATION OR SUSPENSION OF LICENSE.--

          A. The board, by an affirmative vote of at least five of its eight members, shall withhold, deny, revoke or suspend a psychologist or psychologist associate license issued or applied for in accordance with the provisions of the Professional Psychologist Act or otherwise discipline a licensed psychologist or psychologist associate upon proof that the applicant, licensed psychologist or psychologist associate:

                (1) has been convicted of a felony or an offense involving moral turpitude, the record of conviction being conclusive evidence thereof;

                (2) is using a drug, substance or alcoholic beverage to an extent or in a manner dangerous to the psychologist or psychologist associate, any other person or the public or to an extent that the use impairs the psychologist's or psychologist associate's ability to perform the work of a professional psychologist or psychologist associate with safety to the public;

                (3) has impersonated another person holding a psychologist or psychologist associate license or allowed another person to use the psychologist's or psychologist associate's license;

                (4) has used fraud or deception in applying for a license or in taking an examination provided for in the Professional Psychologist Act;

                (5) has accepted commissions or rebates or other forms of remuneration for referring clients to other professional persons;

                (6) has allowed the psychologist's or psychologist associate's name or license issued under the Professional Psychologist Act to be used in connection with a person who performs psychological services outside of the area of that person's training, experience or competence;

                (7) is legally adjudicated insane or mentally incompetent, the record of such adjudication being conclusive evidence thereof;

                (8) has willfully or negligently violated the provisions of the Professional Psychologist Act;

                (9) has violated any code of conduct adopted by the board;

                (10) has been disciplined by another state for acts similar to acts described in this subsection, and a certified copy of the record of discipline of the state imposing the discipline is conclusive evidence;

                (11) is incompetent to practice psychology;

                (12) has failed to furnish to the board or its representative information requested by the board;

                (13) has abandoned patients or clients;

                (14) has failed to report to the board adverse action taken against the licensee by:

                     (a) another licensing jurisdiction;

                     (b) a professional psychologist association of which the psychologist or psychologist associate is or has been a member;

                     (c) a government agency; or

                     (d) a court for actions or conduct similar to acts or conduct that would constitute grounds for action as described in this subsection;

                (15) has failed to report to the board surrender of a license or other authorization to practice psychology in another jurisdiction or surrender of membership on a health care staff or in a professional association following a disciplinary investigation, or in lieu of or while under a disciplinary investigation, by any of those authorities for acts or conduct that would constitute grounds for action as defined in this subsection;

                (16) has failed to adequately supervise a psychologist associate or a licensed psychologist holding a

conditional prescription certificate;

                (17) has employed abusive billing practices;

                (18) has aided or abetted the practice of psychology by a person not licensed by the board; or

                (19) uses conversion therapy on a minor.

          B. A person who has been refused a license or whose license has been restricted or suspended under the provisions of this section may reapply for licensure after more than two years have elapsed from the date the restriction or suspension is terminated.

          C. As used in this section:

                (1) "conversion therapy" means any practice or treatment that seeks to change a person's sexual orientation or gender identity, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward persons of the same sex. "Conversion therapy" does not mean:

                     (a) counseling or mental health services that provide acceptance, support and understanding of a person without seeking to change gender identity or sexual orientation; or

                     (b) mental health services that facilitate a person's coping, social support, sexual orientation or gender identity exploration and development, including an intervention to prevent or address unlawful conduct or unsafe sexual practices, without seeking to change gender identity or sexual orientation;

                (2) "gender identity" means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth;

                (3) "minor" means a person under eighteen years of age; and

                (4) "sexual orientation" means heterosexuality, homosexuality or bisexuality, whether actual or perceived."

     SECTION 4. Section 61-9-17 NMSA 1978 (being Laws 1963, Chapter 92, Section 16, as amended) is amended to read:

     "61-9-17. DRUGS--MEDICINES.--

          A. Except as provided in Subsections B and C of this section, psychologists or psychologist associates shall not administer or prescribe drugs or medicine or in any manner engage in the practice of medicine as defined by the laws of this state.

          B. A licensed psychologist holding a conditional prescription certificate may prescribe psychotropic medication under the supervision of a [licensed physician] supervising clinician pursuant to the Professional Psychologist Act.

          C. A prescribing psychologist may prescribe psychotropic medication pursuant to the Professional Psychologist Act."

     SECTION 5. Section 61-9-17.1 NMSA 1978 (being Laws 2002, Chapter 100, Section 6) is amended to read:

     "61-9-17.1. CONDITIONAL PRESCRIPTION CERTIFICATE--PRESCRIPTION CERTIFICATE--APPLICATION--REQUIREMENTS--RULEMAKING BY BOARD--ISSUANCE, DENIAL, RENEWAL AND REVOCATION OF CERTIFICATION.--

          A. A psychologist may apply to the board for a conditional prescription certificate. The application shall be made on a form approved by the board and be accompanied by evidence satisfactory to the board that the applicant:

                (1) has completed a doctoral program in psychology from an accredited institution of higher education or professional school, or, if the program was not accredited at the time of the applicant's graduation, that the program meets professional standards determined acceptable by the board;

                (2) holds a current license to practice psychology in New Mexico;

                (3) has successfully completed pharmacological training from an institution of higher education approved by the board and the New Mexico medical board [of medical examiners] or from a provider of continuing education approved by the board and the New Mexico medical board [of medical examiners];

                (4) has passed a national certification examination approved by the board and the New Mexico medical board [of medical examiners] that tests the applicant's knowledge of pharmacology in the diagnosis, care and treatment of mental disorders;

                (5) within the five years immediately preceding the date of application, has successfully completed an organized program of education approved by the board and the New Mexico medical board [of medical examiners] and consisting of didactic instruction of no fewer than four hundred fifty classroom hours in at least the following core areas of instruction:

                     (a) neuroscience;

                     (b) pharmacology;

                     (c) psychopharmacology;

                     (d) physiology;

                     (e) pathophysiology;

                     (f) appropriate and relevant physical and laboratory assessment; and

                     (g) clinical pharmacotherapeutics;

                (6) within the five years immediately preceding the date of application, has been certified by each of the applicant's supervising [psychiatrist or physician] independently licensed prescribing clinicians as having successfully completed a supervised and relevant clinical experience, approved by the board and the New Mexico medical board [of medical examiners], of:

                     (a) no less than an eighty-hour practicum in clinical assessment and pathophysiology under the supervision of an independently licensed prescribing physician; and

                     (b) an additional supervised practicum of at least four hundred hours treating no fewer than one hundred patients with mental disorders, the practica to have been supervised by any one or a combination of a psychiatrist or other appropriately trained independently licensed prescribing physician and determined by the board and the New Mexico medical board [of medical examiners] to be sufficient to competently train the applicant in the treatment of a diverse patient population. One-to-one supervision shall be provided either face-to-face, telephonically or by video conference;

                (7) has malpractice insurance in place, sufficient to satisfy the rules adopted by the board and the New Mexico medical board [of medical examiners], that will cover the applicant during the period the conditional prescription certificate is in effect; and

                (8) meets all other requirements, as determined by rule of the board, for obtaining a conditional prescription certificate.

          B. The board shall issue a conditional prescription certificate if it finds that the applicant has met the requirements of Subsection A of this section. The certificate shall be valid for a period of two years, at the end of which the holder may again apply pursuant to the provisions of Subsection A of this section. A psychologist with a conditional prescription certificate may prescribe psychotropic medication under the supervision of a [licensed physician] supervising clinician subject to the following conditions:

                (1) the psychologist shall continue to hold a current license to practice psychology in New Mexico and continue to maintain malpractice insurance;

                [(2) the psychologist shall inform the board and the New Mexico board of medical examiners of the name of the physician under whose supervision the psychologist will prescribe psychotropic medication and promptly inform the board and the New Mexico board of medical examiners of any change of the supervising physician; and

                (3) a physician supervising a psychologist prescribing psychotropic medication pursuant to a conditional prescription certificate shall inform the board and the New Mexico board of medical examiners that he is supervising the psychologist. The physician shall be individually responsible for the acts and omissions of the psychologist while under his supervision. This provision does not relieve the psychologist from liability for his acts and omissions.]

                (2) the psychologist shall notify the board of the name of the psychologist's supervising clinician; and

                (3) a supervising clinician shall notify the supervising clinician's own licensing board of the name of each psychologist under the supervising clinician's supervision.

          C. A supervising clinician shall not be liable for the acts of a psychologist under the supervising clinician's supervision unless the injury or loss arises from those acts under the direction and control of the supervising clinician.

          [C.] D. A psychologist may apply to the board for a prescription certificate. The application shall be made on a form approved by the board and be accompanied by evidence satisfactory to the board that the applicant:

                (1) has been issued a conditional prescription certificate and has successfully completed two years of prescribing psychotropic medication as certified by the supervising [licensed physician] clinician;

                (2) has successfully undergone a process of independent peer review approved by the board and the New Mexico medical board [of medical examiners];

                (3) holds a current license to practice psychology in New Mexico;

                (4) has malpractice insurance in place, sufficient to satisfy the rules adopted by the board, that will cover the applicant as a prescribing psychologist; and

                (5) meets all other requirements, as determined by rule of the board, for obtaining a prescription certificate.

          [D.] E. The board shall issue a prescription certificate if it finds that the applicant has met the requirements of Subsection [C] D of this section. A psychologist with a prescription certificate may prescribe psychotropic medication pursuant to the provisions of the Professional Psychologist Act if the psychologist:

                (1) continues to hold a current license to practice psychology in New Mexico and continues to maintain malpractice insurance; and

                (2) annually satisfies the continuing education requirements for prescribing psychologists, as set by the board, which shall be no fewer than twenty hours each year.

          [E.] F. The board shall promulgate rules providing for the procedures to be followed in obtaining a conditional prescription certificate, a prescription certificate and renewals of a prescription certificate. The board may set reasonable application and renewal fees.

          [F.] G. The board shall promulgate rules establishing the grounds for denial, suspension or revocation of conditional prescription certificates and prescription certificates authorized to be issued pursuant to this section, including a provision for suspension or revocation of a license to practice psychology upon suspension or revocation of a certificate. Actions of denial, suspension or revocation of a certificate shall be in accordance with the Uniform Licensing Act."

     SECTION 6. Section 61-9-17.2 NMSA 1978 (being Laws 2002, Chapter 100, Section 7) is amended to read:

     "61-9-17.2. PRESCRIBING PRACTICES.--

          A. A prescribing psychologist or a psychologist with a conditional prescription certificate may administer and prescribe psychotropic medication within the recognized scope of the profession, including the ordering and review of laboratory tests in conjunction with the prescription, for the treatment of mental disorders.

          B. When prescribing psychotropic medication for a patient, the prescribing psychologist or the psychologist with a conditional prescription certificate shall maintain an ongoing collaborative relationship with the health care practitioner who oversees the patient's general medical care to ensure that necessary medical examinations are conducted, the psychotropic medication is appropriate for the patient's medical condition and significant changes in the patient's medical or psychological condition are discussed.

          C. The ongoing collaborative relationship shall be maintained pursuant to guidelines developed by the board and the New Mexico medical board [of medical examiners], which shall optimize patient care.

          D. The guidelines shall ensure that the prescribing psychologist or the psychologist with a conditional prescription certificate and the [treating physician] health care practitioner coordinate, and collaborate on, the care of the patient to provide optimal care. Nothing in this subsection shall require a prescribing psychologist or psychologist with a conditional prescription certificate to give prior notice to or obtain prior approval from a health care practitioner to prescribe psychotropic medication to a patient with whom the prescribing psychologist has established a psychologist-patient relationship; provided that the psychologist provides written notice of the prescription to the health care practitioner within twenty-four hours of its issuance to such patient.

          E. A committee composed of members of [both boards] the board and the New Mexico medical board shall be established and, pursuant to the guidelines, shall evaluate complaints. The committee shall report its findings and recommendations to each board for each board's appropriate actions.

          [C.] F. A prescription written by a prescribing psychologist or a psychologist with a conditional prescription certificate shall:

                (1) comply with applicable state and federal laws;

                (2) be identified as issued by the psychologist as "psychologist certified to prescribe"; and

                (3) include the psychologist's board-assigned identification number.

          [D.] G. A prescribing psychologist or a psychologist with a conditional prescription certificate shall not delegate prescriptive authority to any other person. Records of all prescriptions shall be maintained in patient records.

          [E.] H. When authorized to prescribe controlled substances, a prescribing psychologist or a psychologist with a conditional prescription certificate shall file with the board in a timely manner all individual federal drug enforcement [agency] administration registrations and numbers. The board and the New Mexico medical board [of medical examiners] shall maintain current records on every psychologist, including federal registrations and numbers.

          [F.] I. The board shall provide to the board of pharmacy and the New Mexico medical board [of medical examiners] an annual list of prescribing psychologists and psychologists with conditional prescription certificates that contains the information agreed upon between the board, the New Mexico medical board [of medical examiners] and the board of pharmacy. The board shall promptly notify the board of pharmacy of psychologists who are added to or deleted from the list.

          [G.] J. For the purpose of this section:

                (1) "collaborative relationship" means a cooperative working relationship between a prescribing psychologist or a psychologist with a conditional prescription certificate and a health care practitioner in the provision of patient care, including diagnosis and cooperation in the management and delivery of physical and mental health care; and

                (2) "health care practitioner" means a physician, osteopathic physician, [or] nurse practitioner, physician assistant or clinical nurse specialist."

     SECTION 7. A new section of the Nursing Practice Act is enacted to read: 

     "[NEW MATERIAL] SUPERVISION OF PSYCHOLOGIST IN THE PRESCRIBING OF PSYCHOTROPIC MEDICATION BY NURSE PRACTITIONER OR CLINICAL NURSE SPECIALIST.--

          A. Subject to rules promulgated by the board, a nurse practitioner or clinical nurse specialist may supervise a psychologist in the prescribing of psychotropic medication pursuant to the Professional Psychologist Act.

          B. No later than January 1, 2020, the board shall promulgate regulations for a nurse practitioner or clinical nurse specialist who supervises a psychologist in the prescribing of psychotropic medication pursuant to the Professional Psychologist Act."

     SECTION 8. A new section of the Professional Psychologist Act is enacted to read:

     "[NEW MATERIAL] PRESCRIPTION MONITORING PROGRAM--BOARD TO PROMULGATE RULES.--By January 1, 2020, the board shall promulgate rules to carry out the provisions of the prescription monitoring program established by Section 26-1-16.1 NMSA 1978 insofar as that program applies to prescribing psychologists."

     SECTION 9. A new section of the Osteopathic Medicine Act is enacted to read:

     "[NEW MATERIAL] SUPERVISION OF PSYCHOLOGIST IN THE PRESCRIBING OF PSYCHOTROPIC MEDICATION BY OSTEOPATHIC PHYSICIAN.--

          A. Subject to rules promulgated by the board, an osteopathic physician may supervise a psychologist in the prescribing of psychotropic medication pursuant to the Professional Psychologist Act.

          B. No later than January 1, 2020, the board shall promulgate regulations for an osteopathic physician who supervises a psychologist in the prescribing of psychotropic medication pursuant to the Professional Psychologist Act."

     SECTION 10. REPEAL.--Section 61-9-2 NMSA 1978 (being Laws 1989, Chapter 41, Section 2) is repealed. 

     SECTION 11. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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