New Mexico Register / Volume XXX, Issue
12 / June 25, 2019
TITLE 16 OCCUPATIONAL AND PROFESSIONAL LICENSING
CHAPTER 11 MIDWIVES
PART 2 CERTIFIED NURSE-MIDWIVES
16.11.2.1 ISSUING AGENCY:
New Mexico Department of Health.
[16.11.2.1
NMAC - Rp, 16.11.2.1 NMAC, 6/25/2019]
16.11.2.2 SCOPE:
This rule applies to any person seeking to practice or currently
practicing as a certified nurse-midwife in the state of New Mexico.
[16.11.2.2
NMAC - Rp, 16.11.2.2 NMAC, 6/25/2019]
16.11.2.3 STATUTORY AUTHORITY:
This rule is authorized by Subsection E of Section 9-7-6 NMSA 1978, Subsection
R of Sections 24-1-3 and 24-1-4.1, NMSA 1978.
[16.11.2.3
NMAC - Rp, 16.11.2.3 NMAC, 6/25/2019]
16.11.2.4 DURATION:
Permanent.
[16.11.2.4
NMAC - Rp, 16.11.2.4 NMAC, 6/25/2019]
16.11.2.5 EFFECTIVE DATE:
June 25, 2019, unless a later date is cited at the end of a section.
[16.11.2.5
NMAC - Rp, 16.11.2.5 NMAC, 6/25/2019]
16.11.2.6 OBJECTIVE:
This rule governs the licensure and practice of certified nurse-midwives
(CNMs) in New Mexico.
[16.11.2.6
NMAC - Rp, 16.11.2.6 NMAC, 6/25/2019]
16.11.2.7 DEFINITIONS:
A. "ACNM" means
the American college of nurse-midwives.
B. “AMCB” means
American midwifery certification board.
C. "Addiction"
is a neurobehavioral syndrome with genetic and environmental influences that
results in psychological dependence on the use of substances for their psychic
effects. It is characterized by
behaviors that include one or more of the following: impaired control over drug
use; compulsive use; continued use despite harm; and craving. Physical dependence and tolerance are normal
physiological consequences of extended opiate or opioid therapy for pain and
should not by themselves be considered addiction.
D. "Board"
means the certified nurse-midwifery advisory board established under these
rules.
E. "Certified
nurse-midwife (CNM)" means an individual educated in the two
disciplines of nursing and midwifery, who is certified by the AMCB or its
designee and who is licensed under this rule.
F. "Chronic
pain" means pain that persists after reasonable efforts have been made
to relieve the pain or its cause and that continues, either continuously or
episodically, for longer than three consecutive months. For purposes of this rule, chronic pain does
not include pain associated with a terminal condition or with a progressive
disease that, in the normal course of progression, may reasonably be expected
to result in a terminal condition.
G. "CNM
license" means a document issued by the department identifying a legal
privilege and authorization to practice within the scope of this rule.
H. "Contact
hour" means 50-60 minutes of an organized learning experience relevant
to CNM practice, approved by one of the following:
(1) accreditation
council for continuing medical education (ACCME);
(2) ACNM;
(3) American
college of obstetricians and gynecologists (ACOG);
(4) American
academy of physician assistants (AAPA);
(5) American
academy of nurse practitioners (AANP);
(6) nurse
practitioners in women's health (NPWH); or
(7) other
clinician-level continuing education accrediting agencies approved by the
department.
I. "Continuance" means
the adjournment or postponement of a trial or other proceeding to a future
date.
J. "Controlled substance" means
any drug or therapeutic agent listed in Schedules I
through V of Sections 30-31-6 to 30-3-10 NMSA 1978, Controlled Substances Act, or
rules adopted thereto, which is commonly understood to include narcotics.
K. "Dangerous drug" means
a prescription drug other than a controlled substance that has been determined
by law to be unsafe for self-administration and is included in Sections 26-1-1
to 26-1-26 NMSA 1978, New Mexico Drug, Device and Cosmetic Act, and in Sections
30-31-6 NMSA, Controlled Substances Act.
L. "Department"
means the New Mexico department of health.
M. "Division"
means the public health division.
N. “National practitioner
data bank (NPDB)” means the web-based repository of reports containing information
on medical malpractice payments and certain adverse actions related to health
care practitioners, providers, and suppliers.
O. "Pain"
means an unpleasant sensory and emotional experience associated with
inflammation or with actual or potential tissue damage or described in terms of
such inflammation and damage, which could include acute, persistent, or chronic
pain.
P. "Peer
review" means the assessment and evaluation of CNM practice by other
CNMs and other health care providers to measure compliance with established
institutional or legal standards. In the
peer review process, a CNM’s practice undergoes scrutiny for the purpose of
professional self-regulation.
Q. "Physical
dependence" means a state of adaptation that is manifested by a drug-specific
withdrawal syndrome that can be produced by abrupt cessation, rapid dose
reduction, decreasing blood level of the drug, administration of an antagonist,
or a combination of these.
R. "Prescription
monitoring program (PMP)" means a centralized electronic system within
the New Mexico board of pharmacy that collects, monitors, and analyzes data
submitted by dispensing practitioners and pharmacies related to the prescribing
and dispensing of controlled substances.
The data are used to support efforts in education, research, enforcement,
and abuse prevention.
S. "Primary
care" means the provision of integrated, accessible health care
services by clinicians who are accountable for addressing the large majority of
presenting health care needs, developing sustained partnerships with clients,
and practicing within the context of family and community.
T. "Quality
assurance" means monitoring structural, procedural, and outcome
indicators as they relate to accepted standards.
U. "Quality
improvement" means modifying the process for providing care in order
to improve outcomes. Modifications are
based upon the measurement of parameters such as evidence-based best practices,
patient satisfaction, clinical outcomes, population-specific care, culturally appropriate
care, appropriate use of technology and resources, and access to care.
V. "Therapeutic
purpose" means the use of pharmaceutical and non-pharmaceutical
treatments and the spectrum of available modalities that conforms substantially
to accepted guidelines.
W. "Tolerance"
means a state of adaptation in which exposure to a drug induces changes
that result in a diminution of one or more of the drug’s effects over time.
X. "Valid
CNM-client relationship" means a professional relationship between the
CNM and the client for the purpose of maintaining the client’s well-being. At minimum, this relationship is an
interactive encounter between the CNM and client involving an appropriate
history and physical or mental examination; ordering labs or diagnostic tests
sufficient to make a diagnosis; and providing, prescribing, or recommending
treatment, or referring to other health care providers. A patient record must be generated by the
encounter. The relationship includes:
(1) the
CNM has sufficient information to ensure that a dangerous drug or controlled
substance is indicated and necessary for treatment of a condition when the CNM
prescribes a dangerous drug or controlled substance;
(2) the
CNM has sufficient information to ensure that a dangerous drug or controlled
substance is not contraindicated for the individual;
(3) the
CNM provides a client with appropriate information on the proper dosage, route,
frequency, and duration of a drug treatment;
(4) the
CNM informs the client of possible untoward effects and side effects of a
proposed treatment;
(5) the
CNM provides care for a client in the event of an untoward effect or a side
effect that requires care;
(6) the
CNM provides for client education regarding a condition and the condition’s
treatment to enhance client compliance with plan of care;
(7) the
CNM provides for appropriate follow-up care, including further testing,
treatment and education, as appropriate; and
(8) the
CNM documents, at minimum, the indication, drug, and dosage of any prescribed
drugs in a health record for the individual.
[16.11.2.7
NMAC - Rp, 16.11.2.7 NMAC, 6/25/2019]
16.11.2.8 DOCUMENTS INCORPORATED BY REFERENCE ARE THE LATEST
EDITIONS OF:
A. ACNM “core
competencies for basic midwifery practice”.
B. ACNM “standards
for the practice of midwifery”.
C. ACNM handbook: “the
home birth practice manual”.
[16.11.2.8
NMAC - Rp, 16.11.2.8 NMAC, 6/25/2019]
16.11.2.9 LICENSURE:
A. Licensure requirements: A CNM practicing in New Mexico shall hold a
license that meets the New Mexico board of nursing’s requirement to practice as
a registered nurse in New Mexico and shall hold current certification by AMCB
or its designee. The department may deny
licensure, including renewal or reinstatement of licensure, to a CNM whose
midwifery or nursing license has been subject to disciplinary action in any
jurisdiction. If denied, re-application
will only be considered after a minimum of one year from date of initial denial,
and the re-application must be accompanied by full disclosure and complete
record of previous actions. A CNM
license is not transferable.
B. Initial
licensure:
(1) An applicant for licensure to
practice as a CNM in New Mexico shall submit to the department:
(a) a
completed application;
(b) proof of holding a valid license that
meets the New Mexico board of nursing’s requirement to practice as a registered
nurse in New Mexico;
(c) proof of current certification by AMCB
or its designee;
(d) the
fee designated in Subsection E of this section.
(2) An
initial CNM license may be issued at any time upon submission and verification
of the materials required in Paragraph (1) of this subsection and shall expire
on the expiration date of the registered nurse license issued by the New Mexico
board of nursing. A CNM license shall be valid for a maximum of two years.
(3) If
a license is denied on initial application, the applicant may reapply after one
year and upon meeting all the requirements under Subsection B of 16.11.2.9 NMAC.
(4) Any
final action denying a license to an applicant is an event reportable to the
NPDB.
C. Licensure renewal:
(1) A
CNM's renewed license shall expire on the expiration date of the registered
nurse license issued by the New Mexico board of nursing.
(2) An
applicant for licensure renewal shall submit to the department:
(a) a
completed application postmarked or electronically submitted at least 25
calendar days before the expiration of the CNM license;
(b) proof
of holding a valid license that meets the requirement of the New Mexico board
of nursing to practice as a registered nurse in New Mexico for the period the
renewed CNM license will cover;
(c) proof
of current certification by AMCB or its designee;
(d) proof
of having met the continuing education and quality management requirements in
Paragraphs (3) and (4) of this subsection; and
(e) the
fee designated in Subsection E of this section;
(f) an
additional fee designated in Subsection E of this section for applications
postmarked, hand delivered, or electronically submitted after the fifth day of
the month after the license is expiring.
(3) Continuing
education: CNMs must complete a minimum
of 30 contact hours during the two years preceding license renewal.
(a) 15
of the contact hours shall be pharmacology-related. As part of the pharmacology-related contact
hours, a CNM who holds a CNM license shall submit with the first license
renewal application proof of completing a minimum of five contact hours on any
of the following topics:
(i) the
CNM rule as it applies to management of chronic pain,
(ii) the
pharmacology and risks of controlled substances,
(iii) the
problems of abuse and addiction, or
(iv) state
and federal regulations for the prescription of controlled substances.
(b) With
each subsequent license renewal application, a CNM shall submit proof of
completing a minimum of two contact hours on the above topics.
(c) The
following options, subject to audit and approval by the department, may be
accepted in place of continuing education contact hours, except for the
pharmacology-related contact hours requirement:
(i) preparation
and presentation of a nurse-midwifery topic that has received contact hour
approval by any of the organizations listed in Subsection G of 16.11.2.7 NMAC,
will count for twice the number of contact hours for which the presentation is
approved; the same presentation cannot be credited more than once;
(ii) sole
or primary authorship of one nurse-midwifery related article published in a
department-approved professional medical or midwifery journal may be accepted
in place of 10 contact hours per licensure period;
(iii) completion
of a formal university or college course directly related to nurse-midwifery
practice; each university or college unit shall be credited as 15 hours of continuing
education; and
(iv) acting
as primary preceptor for a nurse-midwifery or certified midwifery student; each
10 hours of precepting shall be credited as one continuing education hour;
verification shall be provided by an accreditation commission for midwifery
education (ACME) accredited nurse-midwifery education program; acting as primary preceptor for a licensed midwifery
student upon verification of out of hospital setting practice by the CNM, prior
to preceptor relationship This option shall not be accepted in place of
pharmacology-related contact hours.
(4) Quality
management: documentation of
participation during the preceding two years in a system of quality management
meeting the approval of the department is required for license renewal. Quality management includes peer review,
quality assurance and quality improvement as defined in Subsections P, U, T of 16.11.2.7
NMAC.
(5) If
license renewal is denied, the applicant may request an administrative hearing
under the terms set forth by Paragraph (5) of Subsection C of 16.11.2.11 NMAC.
D. Reinstatement of a lapsed CNM license: The requirements for reinstatement of a
CNM license that has lapsed are the same as those for license renewal, listed
in Paragraph (2) of Subsection C of 16.11.2.9 NMAC, except that the applicant
may submit an application at any time within four years of the license’s
lapsing and the fee is higher than a renewal, as designated in Subsection E of
this section.
E. Fees:
the department shall charge applicants the following fees for licensure
services:
(1) two
hundred dollars ($200) for initial licensure;
(2) one
hundred dollars ($100) for license renewal;
(3) one
hundred and fifty dollars ($150.00) additional for renewing a license when the
complete application is not postmarked, hand delivered, or electronically
submitted by the fifth calendar day of the month of the current license’s
expiration date;
(4) one
hundred and fifty dollars ($150.00) additional to a renewal licensure fee for
reinstatement of a lapsed or a revoked license;
(5) twenty-five
dollars ($25.00) for verifying licenses by FAX or letter;
(6) thirty
dollars ($30.00) for a hard copy of a license certificate (8 ½” x 11” size).
F. Change of address or other contact
information: a CNM shall report a
change of any contact information to the department within 30 days of the
change.
[16.11.2.9
NMAC - Rp, 16.11.2.9 NMAC, 6/25/2019]
16.11.2.10 PRACTICE OF THE CERTIFIED
NURSE-MIDWIFE:
A. Scope of practice: Practice by CNMs encompasses independently
providing a full range of primary health care services for women from
adolescence to beyond menopause. These
services include primary care; gynecologic and family planning services;
pre-conception care; care during pregnancy, childbirth, and the postpartum
period; care of the normal newborn; and treatment of male partners for sexually
transmitted infections. Midwives provide
initial and ongoing comprehensive assessment, diagnosis, and treatment. They conduct physical examinations;
independently prescribe, distribute, and administer dangerous drugs, devices,
and contraceptive methods, and controlled substances in Schedules II through V
of Sections 30-31-1 NMSA 1978, Controlled Substances Act; admit, manage, and discharge patients; order
and interpret laboratory and diagnostic tests; and order the use of medical
devices. Midwifery care also includes
health promotion, disease prevention, and individualized wellness education and
counseling. These services are provided
in partnership with clients/patients in diverse settings such as ambulatory
care clinics, private offices, community and public health systems, homes,
hospitals, and birth centers. A CNM
practices within a health care system that provides for consultation,
collaborative management, or referral as indicated by the health status of the
client. A CNM practices in accordance
with the ACNM "standards for the practice of midwifery". A CNM who expands beyond the ACNM "core
competencies" to incorporate new procedures that improve care for their
clients/patients shall comply with the guidelines set out in the ACNM
"standards for the practice of midwifery", standard VIII. Practice guidelines for home births should be
informed by the most recent edition of the "ACNM home birth practice manual."
B. Prescriptive authority:
(1) Dangerous
drugs: A CNM who prescribes, distributes,
or administers a dangerous drug or device shall do so in accordance with Section
26-1 NMSA 1978, New Mexico Drug, Device and Cosmetic Act.
(2) Controlled
substances:
(a) A
CNM shall not prescribe nor distribute controlled substances in Schedule I of Section
26-1 1978 NMSA, Controlled Substances Act..
(b) A
CNM shall not prescribe, distribute, or administer controlled substances in
Schedules II-V of the Controlled Substances Act unless the CNM is registered
with the New Mexico board of pharmacy and the United States drug enforcement
administration (DEA) to prescribe, distribute, and administer controlled
substances.
(c) A
CNM who prescribes, distributes, or administers a controlled substance in
Schedules II-V of Section 26-1 NMSA 1978, Controlled Substances Act, shall do
so in accordance with the Controlled Substances Act.
(d) An
individual employed as a CNM by the United States military, the United States
veterans administration, or the United States public health service, and
operating in the official capacity of that employment, who is prescribing,
distributing or administering controlled substances under that facility’s
United States drug enforcement administration registration is exempt from the
Subparagraphs (a), (b) and (c) of Paragraph (2) of this subsection.
(e) A
CNM may prescribe, provide samples of, and dispense any dangerous drug to a
patient if, at the time of the prescription, the CNM has a valid CNM-client
relationship with the patient, as defined in 16.12.2.7 NMAC.
(3) Prescriptions:
A CNM may prescribe by telephone, by written prescription, by e-mail, or
through an electronic health record (EHR) system. Controlled substances may only be prescribed
by written prescription. A CNM
prescription shall have the CNM's name, office address, and telephone number
printed on it. In the event that a CNM
is writing a prescription printed with the names of more than one CNM, the name
of the CNM writing the individual prescription shall be indicated. The name and address of the client, the date
of the prescription, the name and quantity of the drug prescribed, and
directions for use shall be included on a prescription.
(4) Labeling: When distributing a drug, a CNM shall label
it with the client's name and date of birth; the date; instructions for use;
and the CNM’s name, address, and telephone number.
C. Guidelines for management of chronic pain
or other conditions with controlled substances. The treatment of chronic pain or other
conditions with various modalities, including controlled substances such as
opiates and opioids, is a legitimate practice when done in the usual course of
CNM practice. The goal when treating
chronic pain is to reduce or eliminate pain and also to avoid development of or
contribution to addiction, drug abuse, and overdosing. Effective dosages should be prescribed, with
both under- and over-prescribing to be avoided, using patient protection as a
guiding principle. The CNM should provide
control of the patient’s pain for its duration, while effectively addressing
other aspects of the patient’s functioning, including physical, psychological,
social, and work-related factors. A CNM
may treat patients with addiction, physical dependence, or tolerance who have
legitimate pain, however such patients require very close monitoring and
precise documentation.
(1) If,
in a CNM’s professional opinion, a patient is seeking pain medication for
reasons that are not medically justified, the CNM is not required to prescribe
controlled substances for the patient.
(2) When
prescribing, dispensing, or administering controlled substances for management
of chronic pain, a CNM shall:
(a) obtain
a PMP report for the patient covering the preceding 12 months from the New
Mexico board of pharmacy and any other state’s report that is applicable and
available;
(b) complete
a history and physical examination and include an evaluation of the patient’s
psychological and pain status, any previous history of significant pain, past
history of alternate treatments for pain, potential for substance abuse,
coexisting disease or medical conditions, and the presence of medical
indications or contra-indications related to controlled substances;
(c) be
familiar with and employ screening tools, as well as the spectrum of available
modalities for therapeutic purposes, in the evaluation and management of pain,
and consider an integrative approach to pain management in collaboration with
other care providers, including but not limited to acupuncturists,
chiropractors, doctors of oriental medicine, exercise physiologists, massage
therapists, pharmacists, physical therapists, psychiatrists, or psychologists;
(d) develop
a written individual treatment plan taking age, gender, and culture into
consideration, with stated objectives by which treatment can be evaluated, such
as degree of pain relief, improved physical and psychological function, or
other accepted measures, and include any need for further testing,
consultation, referral, or use of other treatment modalities as appropriate;
(e) discuss
the risks and benefits of using controlled substances with the patient or legal
guardian and document this discussion in the medical record;
(f) make
a written agreement with the patient or legal guardian outlining patient
responsibilities, including a provision stating that the chronic pain patient
will receive all chronic pain management prescriptions from one practitioner
and one pharmacy whenever possible;
(g) maintain
complete and accurate records of care provided and drugs prescribed, including
the indications for use, the name of the drug, quantity, prescribed dosage, and
number of refills authorized;
(h) when
indicated by the patient’s condition, consult with health care professionals
who are experienced in the area of the chronic pain or other conditions, though
not necessarily specialists in pain control, both early in the course of
long-term treatment and at least every six months;
(i) when
treating patients with drug addiction or physical dependence, use drug
screening prior to and during the course of treatment to identify the drugs the
patient is consuming and compare the screening results with patients’
self-reports (this should be included in the written agreement, see
Subparagraph (f) above);
(j) note
possible indications of drug abuse by a patient and take appropriate steps to
further investigate and to avoid contributing to drug abuse; such steps may
include termination of treatment. Information about some of the indications may
be available only through PMP reports. The following list of possible
indications of drug abuse is non-exhaustive:
(i) receiving
controlled substances from multiple prescribers;
(ii) receiving
controlled substances for more than 12 consecutive weeks;
(iii) receiving
more than one controlled substance analgesic;
(iv) receiving
a new prescription for any long-acting controlled substance analgesic
formulation, including oral or transdermal dosage forms or methadone;
(v) overutilization,
including but not limited to early refills;
(vi) appearing
overly sedated or intoxicated upon presentation; or
(vii) an
unfamiliar patient requesting a controlled substance by specific name, street name,
color, or identifying marks.
D. Prescription Monitoring Program (PMP)
Requirements: The department requires
participation in the PMP to assist practitioners in balancing the safe use of
controlled substances with the need to impede harmful and illegal activities
involving these pharmaceuticals. Any
practitioner who holds a federal drug enforcement administration registration
and a New Mexico controlled substance registration shall register with the
board of pharmacy to become a regular participant in PMP inquiry and reporting. A practitioner may authorize delegate(s) to
access the prescription monitoring report consistent with board of pharmacy
regulation 16.19.29 NMAC. While a
practitioner’s delegate may obtain a report from the state’s prescription
monitoring program, the practitioner is solely responsible for reviewing the
prescription monitoring report and documenting the receipt and review of a
report in the patient’s medical record.
Before
a practitioner prescribes or dispenses for the first time, a controlled
substance in Schedule II, III, IV or V to a patient for a period greater than
four days, or if there is a gap in prescribing the controlled substance for 30
days or more, the practitioner shall review a prescription monitoring report
for the patient for the preceding 12 months.
When available, the practitioner shall review similar reports from adjacent
states. The practitioner shall document
the receipt and review of such reports in the patient’s medical record. A prescription monitoring report shall be
reviewed a minimum of once every three months during the continuous use of a
controlled substance in Schedule II, III, IV or V for each patient. The practitioner shall document the review of
these reports in the patient’s medical record.
Nothing in this section shall be construed as preventing a practitioner
from reviewing prescription monitoring reports with greater frequency than that
required by this section.
(1) A
practitioner does not have to obtain and review a prescription monitoring
report before prescribing, ordering, or dispensing a controlled substance in Schedule
II, III, IV or V:
(a) for
a period of four days or less; or
(b) to
a patient in a nursing facility; or
(c) to
a patient in hospice care.
(d) or
when prescribing, dispensing, or administering of: testosterone, pregabalin, lacosamide,
ezogabine or stimulant therapy for pediatric patients less than age 14.
(2) Upon
review of a prescription monitoring report for a patient, the practitioner
shall identify, be aware, and document if a patient is currently:
(a) receiving
opioids from multiple prescribers;
(b) receiving
opioids and benzodiazepines concurrently;
(c) receiving
opioids for more than 12 consecutive weeks;
(d) receiving
more than one controlled substance analgesic;
(e) receiving
opioids totaling more than 90 morphine milligram equivalents per day;
(f) exhibiting
potential for abuse or misuse of opioids and other controlled substances, such
as any of the following indicators:
(g) over-utilization;
(h) requests
to fill early;
(i) requests
for a controlled substance or specific opioid by specific name, street name;
color, or identifying marks;
(j) requests
to pay cash when insurance is available;
(k) receiving
opioids from multiple pharmacies; or
(l) appearing
overly sedated or intoxicated upon presentation.
(3) Receiving
a new prescription for any long-acting controlled substance analgesic
formulation, including oral or transdermal dosage forms or methadone.
(4) Upon
recognizing any of the above conditions described in item (iv) of Subparagraph
(j) of Paragraph (2) of Subsection C 16.11.2.10 NMAC, the practitioner, using
professional judgement based on prevailing standards of practice, shall take
action as appropriate to prevent, mitigate, or resolve any potential problems
or risks that may result in opioid misuse, abuse, or overdose. These steps may involve counseling the
patient on known risks and realistic benefits of opioid therapy, prescription
and training for naloxone, consultation with or referral to a pain management
specialist, or offering or arranging treatment for opioid or substance use
disorder. The practitioner shall
document actions taken to prevent, mitigate, or resolve the potential problems
or risks.
(5) Practitioners licensed to practice in an opioid treatment program, as defined in 7.32.8 NMAC, shall review a prescription monitoring report upon a patient’s initial enrollment into the Opioid Treatment Program and every three months thereafter while prescribing, ordering, administering, or dispensing opioid treatment medications in Schedule II-V for the purpose of treating opioid use disorder. The practitioner shall document the receipt and review of a report in the patient’s medical record.
E. Other rules: a CNM shall fulfill the requirements of all
relevant department rules including:
(1) "bureau
of vital records and health statistics," 7.2.2 NMAC;
(2) "control
of disease and conditions of public health significance," 7.4.3 NMAC;
(3) "newborn
genetic screening," 7.30.6 NMAC;
(4) "prevention
of infant blindness," 7.30.7 NMAC;
(5) “requirement
for freestanding birth centers,” 7.10.2 NMAC; and
(6) “birthing
workforce retention fund,” 7.30.9 NMAC.
[16.11.2.10
NMAC - Rp, 16.11.2.10 NMAC, 6/25/2019]
16.11.2.11 LICENSE DENIAL, SUSPENSION, OR
REVOCATION; DISCIPLINARY ACTION:
The department may deny, revoke, or suspend any license held or applied
for or reprimand or place a license on probation on the grounds of
incompetence, unprofessional conduct, or other grounds listed in this section,
pursuant to Subsection R of Section 24-1-3, NMSA 1978.
A. Grounds for action.
(1) Incompetence. A CNM who fails to possess and apply the
knowledge, skill, or care that is ordinarily possessed and exercised by CNMs or
as defined by the ACNM "core competencies for basic midwifery
practice" is considered incompetent. Charges of incompetence may be based upon a
single act of incompetence or upon a course of conduct or series of acts or
omissions which extend over a period of time and which, taken as a whole,
demonstrate incompetence. Conduct of
such a character that could result in harm to the client or to the public from
the act or omission or series of acts or omissions constitutes incompetence,
whether or not actual harm resulted.
(2) Unprofessional
conduct. For purposes of this rule
"unprofessional conduct" includes, but is not limited to, the
following:
(a) verbally
or physically abusing a client;
(b) engaging
in sexual contact with or toward a client;
(c) abandonment
of a client;
(d) engaging
in the practice of midwifery when judgment or physical ability is impaired by
alcohol or drugs or controlled substances;
(e) practice
that is beyond the scope of CNM licensure;
(f) dissemination
of a client's health information or treatment plan to individuals not entitled
to such information and where such information is protected by law from
disclosure;
(g) falsifying
or altering client records or personnel records for the purpose of reflecting
incorrect or incomplete information;
(h) obtaining
or attempting to obtain any fee for client services for one's self or for
another through fraud, misrepresentation, or deceit;
(i) aiding,
abetting, assisting, or hiring an individual to violate any rule of the
department;
(j) failure
to follow established procedure regarding controlled substances;
(k) failure
to make or to keep accurate, intelligible entries in records as required by the
ACNM “standards for the practice of midwifery”;
(l) obtaining
or attempting to obtain a license to practice certified nurse-midwifery for
one's self or for another through fraud, deceit, misrepresentation, or any
other act of dishonesty in any phase of the licensure or relicense process;
(m) practicing
midwifery in New Mexico without a valid New Mexico license or permit or aiding,
abetting or assisting another to practice midwifery without a valid New Mexico
license;
(n) delegation
of midwifery assessment, evaluation, judgment, or medication administration to a
non-licensed person; or
(o) failure
to provide information requested by the department pursuant to this rule within
20 business days of receiving the request.
(3) Failure
to comply with the New Mexico Parental Responsibility Act, Section 40-5A-1
through 40-5A-13, NMSA 1978.
(4) Dereliction
of any duty imposed by law.
(5) Conviction
of a felony.
(6) Failure
to report in writing to the division any complaint or claim made against the
CNM’s practice as a registered, certified, or licensed health care provider in
any jurisdiction, including as a registered nurse. Such notification shall include the
credentialing jurisdiction and the location, time, and content of the complaint
or claim. It shall be made within 20
business days of the CNM becoming aware of the complaint or claim.
(7) Conduct
resulting in the suspension or revocation of a registration, license, or
certification to perform as a health care provider.
(8) Failure
to report a CNM who appears to have violated the rule for the practice of
certified nurse-midwifery. Anyone reporting an alleged violation of this rule
shall be immune from liability under this rule unless the person acted in bad
faith or with malicious purpose.
(9) Violation
of any of the provisions of this rule.
B. Non-disciplinary proceedings: For non-disciplinary actions involving denial
of renewal of a license the applicant will be provided a notice of contemplated
action and the right to the hearing procedures set forth in Paragraphs (4) and
(5) of Subsection (C) 16.11.2.11 NMAC.
C. Disciplinary proceedings: Disciplinary proceedings shall be conducted
in accordance with Sections 61-1-1 through 61-1-31 NMSA 1978 of the Uniform
Licensing Act (UCLA). Disciplinary
proceedings related to a CNM’s treatment of a patient, for chronic pain or other
conditions, with a controlled substance shall be conducted in accordance with Sections
24-2D-1 through 24-2D-6 NMSA 1978 of the Pain Relief Act, in addition to this
rule.
(1) Filing
of a complaint:
(a) A
written complaint must be filed with the division before a disciplinary
proceeding may be initiated.
(i) A
complaint is an allegation of a wrongful act(s) or omission(s).
(ii) An
allegation of a wrongful act may include knowledge of a judgment or settlement
against a licensee.
(b) A written
complaint may be filed by any person, including a member of the board.
(2) Investigation
of a complaint.
(a) All
complaints alleging a violation of the rules adopted by the department shall be
investigated to determine whether a violation of applicable law or rule has
occurred.
(b) The
investigation may result in a notice of contemplated action (NCA) being issued
by the department if a violation occurred or it may result in a dismissal of
the complaint if no actionable violation can be substantiated. Once dismissal of a complaint is made
following an investigation, the licensee will be notified of the dismissal.
(3) Notice
of contemplated action.
(a) The
NCA shall be drafted by the department.
(b) The
director of the division, or her/his designee shall sign all NCAs.
(c) The
NCAs shall contain written information in accordance with the requirements of
the ULA and shall be served on the licensee in accordance with the ULA.
(4) Request
for a hearing, notice of hearing and request for continuance.
(a) Every
licensee shall be afforded notice and an opportunity to be heard.
(b) Within
20 days of receiving the NCA, a licensee may request a hearing in writing by certified
mail. The department shall notify the
licensee of the time and place of hearing within 20 days of receipt of the
request. The hearing shall be held no
more than 60 nor less than 15 days from the date of service of the notice of
hearing. However, if the ULA designates
time requirements different from the above stated time requirements, the ULA
time requirements shall prevail. The
department shall notify the licensee of these prevailing time requirements when
it sends the NCA.
(c) The licensee may
request to explore a settlement by negotiating a stipulation and agreement with
the administrative attorney of the department at any time prior to the hearing;
if
a settlement is negotiated, the proposed stipulation and agreement shall be
presented to the department for final approval; the proposed stipulation and
agreement does not divest the department of its authority to require a formal
hearing or final approval, amendment, or rejection; if a settlement is not
reached, a hearing shall be held.
(d) Once
a hearing has been scheduled, if a request for a continuance is made it shall
be presented to the department’s hearing officer, in writing, at least 10 days
prior to the scheduled hearing. The
hearing officer may approve or deny the request.
(e) If
a person fails to appear after requesting a hearing, the department may proceed
to consider the matter and make a decision.
(f) If
no request for a hearing is made within the time and manner stated in the NCA,
the department may take the action contemplated in the NCA. Such action shall be final and reportable to
NPBD.
(g) The department shall keep a record of the number of complaints received and the disposition of said complaints as either substantiated or unsubstantiated.
(5) Administrative
hearing.
(a) All
hearings shall be conducted by a hearing officer designated by the secretary or
authorized representative of the department. The hearing officer shall have
authority to rule on all non-dispositive motions.
(b) All
hearings before the department shall be conducted in the same manner as a
hearing in a court of law with the exception that the rules of evidence may be
relaxed in the hearing pursuant to the ULA.
(i) Hearsay
evidence is admissible if it is of a kind commonly relied upon by reasonable
prudent people in the conduct of serious affairs.
(ii) Disciplinary
action against a CNM license must not be based solely on hearsay evidence.
(c) The
hearing officer may take testimony, examine witnesses and direct a continuance
of any case.
(d) The
hearing officer shall have the power to issue subpoenas to compel the
attendance of witnesses or the production of books, documents or records pertinent
to the matter of a case before the department.
(e) The
hearing officer shall issue a report and recommended finding to the department
secretary.
(f) Decision
of the department: the secretary of the
department shall render a final administrative determination after reviewing
the report and recommended findings issued by the hearing officer. Copies of the written decision shall be
mailed via certified mail to the licensee in accordance with the ULA and placed
in the CNM’s licensure file. The department
shall mail a copy of the written decision to the authority(ies) that license(s)
the CNM as a registered nurse and shall report the decision to the NPDB if the
decision is to uphold the disciplinary action.
D. Reinstatement of a suspended or revoked
license.
(1) Individuals
who request reinstatement of their license or who request that their probation
be lifted or altered shall provide the department with substantial evidence to
support their request. This evidence
must be in the form of notarized written reports or sworn written testimony
from individuals who have personal knowledge of the individual’s activities and
progress during the period of probation, suspension, or revocation.
(2) For
reinstatement of licenses for reasons other than noncompliance with Section 40-5A-1
to -13 NMSA 1978, Parental Responsibility Act, requests for reinstatement of a
revoked license shall not be considered by the department prior to the
expiration of one year from the date of the order of revocation. The date of the order of revocation or
suspension is the controlling date, unless otherwise specified in the order. Reinstatement of a revoked license requires
proof of meeting the renewal requirements set forth in this rule and payment of
the reinstatement of current or lapsed license fee.
(3) Requests
for reinstatement of a suspended license shall be considered at such time as
provided by the department in the order of suspension. Reinstatement of a suspended license requires
proof of meeting the renewal requirements as set forth in this rule, any
remedial education, supervised practice or other condition specified in the
order for suspension required by the department and payment of the
reinstatement of current or lapsed license fee.
(4) When
a license is revoked solely because the licensee is not in compliance with the
Parental Responsibility Act, Section 40-5A-1 to 13 NMSA 1978, the license shall
be reinstated upon presentation of a subsequent statement of compliance.
[16.11.2.11
NMAC - Rp, 16.11.2.11 NMAC, 6/25/2019]
16.11.2.12 ADVISORY BOARD: The department shall appoint a CNM advisory
board to make recommendations to the department regarding the regulation of
CNMs.
A. The board shall
be comprised of:
(1) three
New Mexico licensed CNMs, at least one of whom is actively practicing
midwifery;
(2) one
New Mexico licensed midwife (LM) who is actively practicing midwifery;
(3) two
members of the general public, who shall not have any significant financial
interest, direct or indirect, in the profession regulated;
(4) one
actively practicing board-certified obstetrician-gynecologist physician; and
(5) one
employee of the division.
B. Board members
other than the department representative shall be appointed for staggered terms
up to three years in length. Board
members shall serve on a voluntary basis without compensation. They shall not serve for more than two consecutive
terms. The department representative
shall not be subject to term limits.
C. The board shall
meet a minimum of two times a year when a meeting of the board is called by the
director of the division.
D. Board members
may submit requests for reimbursement of in-state travel and per diem for
attending board meetings in accordance with the Per Diem and Mileage Act,
Section 10-8-1 to -8 NMSA 1978 department of finance administration rules,
Section 2.42.2 NMAC.
E. Any member
failing to attend two consecutive board meetings without good cause and an
absence excused prior to the meetings shall be deemed to have resigned from the
board.
[16.11.2.12
NMAC - Rp, 16.11.2.12 NMAC, 6/25/2019]
16.11.2.13 SEVERABILITY: If any part or application of these rules is
determined to be illegal, the remainder of these rules shall not be affected.
[16.11.2.13
NMAC - Rp, 16.11.2.13 NMAC, 6/25/2019]
HISTORY OF 16.11.2 NMAC:
Pre-NMAC
History: The material in this part was
derived from that previously filed with the commission of public records-state
records center and archives.
DPHW
67-24, Nurse Midwife Regulations For New Mexico, filed 12/12/1967.
HSSD
76-2, Nurse Midwife Regulations For New Mexico, filed 1/20/1976.
HED-80-6
(HSD), Regulations Governing the Practice of Certified Nurse Midwives, filed
10/17/1980.
DOH
91-06 (PHD), Regulations Governing the Practice of Certified Nurse Midwives,
filed 11/04/1991.
History of Repealed Material:
16
NMAC 11.2, Certified Nurse Midwives (filed 10/18/1996) repealed 10/15/2009.
16.11.2
NMAC, Certified Nurse Midwives (filed 9/28/2009) repealed 8/30/2013.
16.11.2
NMAC, Certified Nurse Midwives (filed 8/15/2013) repealed 6/25/2019.
Other History:
DOH
91-06 (PHD), Regulations Governing the Practice of Certified Nurse Midwives
(filed 11/04/1991) was renumbered into first version of the New Mexico
Administrative Code as 16 NMAC 11.2, Certified Nurse Midwives, effective 10/31/1996.
16
NMAC 11.2, Certified Nurse Midwives (filed 10/18/1996) was replaced by 16.11.2
NMAC Certified Nurse Midwives, effective 10/15/2009.
16.11.2
NMAC, Certified Nurse Midwives (filed 9/28/2009) was replaced by16.11.2 NMAC,
Certified Nurse Midwives, effective 8/30/2013.
16.11.2
NMAC, Certified Nurse Midwives (filed 8/15/2013) was replaced by16.11.2 NMAC,
Certified Nurse Midwives, effective 6/25/2019.