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(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates/Conflicts with/Companion to/Relates to

SOURCES OF INFORMATION

New Mexico Board of Nursing, Public Regulation Commission

SUMMARY

Synopsis of SPAC Amendment

Senate Public Affairs Committee amendment to Senate Bill 343 does the following:

    1. On page 1, line 21, changes and further defines nationally recognized clinical or professional organization to now mean, the American pain society, the American geriatric society, the agency for health care policy, the national cancer pain initiatives or any other.

    2. Expert opinion has been further qualified to now mean, "whose guidelines have been accepted by the New Mexico board of medical examiners.

    3. Makes numerous word changes such as "informal" to "any", and "remedial and punitive actions" to now read "actions".

    4. On page 2, line 9, inserts, "upon a finding of probable cause that the health care provider has engaged in conduct that violates the Medical Practice Act".

    5. Changes Section 3 of the bill to now read. "No health care provider who prescribes, dispenses or administers medical treatment for the purpose of relieving intractable pain and who can demonstrate by reference to an accepted guideline that his practice substantially complies with that guideline and with the standards of practice identified in Section 4 of the Pain Relief Act shall be subject to disciplinary action or criminal prosecution, unless the showing of substantial compliance with an accepted guideline is rebutted by clinical expert testimony."

    6. Section 4. Is modified to show that diverting medications prescribed for a patient to the provider's own use or for other persons is subject to disciplinary action.

     Synopsis of Bill

Senate Bill 343 establishes the Pain Relief Act for the purpose of preventing disciplinary action from being taken against a health care provider who prescribes, dispenses or administers medical treatment for the therapeutic purpose of relieving intractable pain and who can demonstrate by reference to an accepted guideline that his practice substantially complies with that guideline and with the standards of practice identified in section 4 of the Pain Relief Act. Included in the act are definitions regarding health care providers, clinical experts, disciplinary actions, intractable pain, and therapeutic purpose. Also included is a section dealing with disciplinary actions and evidentiary requirements. Section 5 requires regulatory boards of health care providers mentioned in the act to notify the health care providers under their jurisdiction of the existence of the Pain Relief Act, and finally section 6 speaks to the Pain Relief Act not increasing the scope of practice of the health care providers covered in the act.

Information received from the University of New Mexico Law School and students in the clinical law program shows this legislation to be model legislation developed and adapted for individual states to use. According to Blas Villanueva, a student in the program, this legislation creates a presumption in favor of doctors and other health care providers that protects them from prosecution for pain treatment that falls within guidelines recognized by the state Board of medical Examiners.

Significant Issues

The Pain Relief Act has the effect of limiting the scope and ability of a regulatory board of a health care provider covered under the act from conducting a full hearing and obtaining evidence as permitted by the Uniform Licensing Act because the proposed legislation makes expert opinion the only rebuttal to substantial compliance with an accepted guideline.

FISCAL IMPLICATIONS

Regulatory boards who have jurisdiction of health care providers under this act will be required to develop guidelines and rules and to take those proposals to public hearing for adoption.

CONFLICT/DUPLICATION/COMPANIONSHIP/RELATIONSHIP

Analysis of compatibility with the Uniform Licensing Act should be done.

OTHER SUBSTANTIVE ISSUES

There is concern on behalf of the New Mexico Board of Nursing that guidelines may have the effect of removing discretion when treating an individual patient as the practitioner's best judgement may conflict in individual circumstances with the promulgated guidelines.

MB/njw