New Mexico Register / Volume XXXII,
Issue 20 / October 26, 2021
PUBLIC HEALTH ORDER
NEW MEXICO DEPARTMENT OF HEALTH
ACTING SECRETARY DR. DAVID R. SCRASE, M.D.
OCTOBER 18, 2020
Public Health Emergency Order Regarding Crisis Care and Establishing the
Credentialing
and Approval of State Credentialed Physicians and Credentialed Advanced
Practice
Clinicians in Response to Medical Staff Shortages
ORDER
WHEREAS,
COVID-19 has been confirmed in New Mexico since March 11, 2020, when the New
Mexico Department of Health (“NMDOH” or the “Department”) confirmed the first
cases of individuals infected with COVID-19 in New Mexico and additional cases
have been confirmed each day since then;
WHEREAS, on
March 11, 2020, because of the spread of COVID-19, Michelle Lujan Grisham, the
Governor of the State of New Mexico, issued Executive Order 2020-004 declaring
that a Public Health Emergency exists in New Mexico under the Public Health
Emergency Response Act, and invoked her authority under the All Hazards
Emergency Management Act;
WHEREAS, the State issued a Public
Health Order on December 9, 2020, activating Crisis Standards of Care in
response to the overwhelming burden placed on medical institutions responding to
the pandemic. Contemporaneously, the
State also issued a Public Health Order temporarily limiting non-essential
medical procedures to devote maximum resources towards intensive care units
dealing with a surge in COVID-19 cases.
These two Public Health Orders expired on January 5, 2021, and January
4, 2021, respectively;
WHEREAS, ongoing surges in COVID-19
cases and novel strains of the virus continue to stress the ability of both
institutional and individual providers to deliver the quality of care New
Mexicans ordinarily expect, thus causing an urgent medical crisis;
WHEREAS, the limitations posed on
non-medically necessary procedures in the past and the hesitance of the general
public to seek preventive and routine medical care during the pandemic has
resulted in a significant subsequent increase in non-COVID related patients
seeking medical care, forcing every acute care facility in the State to expand
far beyond normal capacity;
WHEREAS, the State is now experiencing a
drastic shortage in the number of acute care medical workers available as a
result of high patient censuses, fatigue, and higher wages being offered in
other states;
WHEREAS, nurses in the State have been
carrying unprecedented patient loads for the duration of the pandemic, forcing
some nurses to retire or move away from the profession;
WHEREAS, this shortage of medical
professionals not only threatens the State’s immediate ability to respond to
the pandemic, but also threatens medical care access in the State for many
years to follow;
WHEREAS, the State is securing
resources and funding from the Federal Emergency Management Agency to obtain
contract nurses and other medical personnel to assist acute care hospitals
throughout the State, but given that this personnel shortage is a national
issue, few nurses and other medical professionals have been available to come
to New Mexico;
WHEREAS, a host of modifications of
normal medical practice will be necessitated to address the ongoing surge of
both COVID-related and non-COVID related hospitalizations in the New Mexico and
the attendant detrimental consequences to medical practice and medical service
availability within the State;
WHEREAS, it is prudent and crucial to
ensure that primary care and outpatient clinics throughout the state continue
to operate to provide preventative and routine care to lower the number of
inpatient hospitalizations caused by delays in care;
WHEREAS, on October 18, 2021, Governor
Michelle Lujan Grisham issued Executive Order 2021-059 ("EO
2021-059"), recognizing that crisis care standards may need to be
implemented due to the shortage of acute care medical providers;
WHEREAS, EO 2021-059 orders and directs
the New Mexico Department of Health to undertake all steps necessary to
credential and approve certain physicians and other licensed healthcare
providers as "Credentialed Physicians" and certain advance practice
clinicians as "Credentialed Advanced Practice Clinicians" so that
such individuals shall be considered public employees for purposes of the Tort
Claims Act under the All Hazards Emergency Response Act;
WHEREAS, the Department of Health finds
that it is necessary and appropriate under the current circumstances for
certain physicians and other medical clinicians who evidence the meeting of
certain qualifications to become approved to perform certain medical duties by
the Cabinet Secretary and to become credentialed for the purpose of being
deemed public employees for purposes of the New Mexico Tort Claims Act.
WHEREAS, on October 15, 2021, the New
Mexico Medical Advisory Team notified the Secretary of Health that acute care
medical staffing conditions for the possible implementation of "Crisis
Care Standards" are present within the State and that it is appropriate to
apply Crisis Care Standards in hospital settings; and
WHEREAS, during a declared Public
Health Emergency, the New Mexico Department of Health possesses legal authority
pursuant to the Public Health Emergency Response Act to "utilize, secure
or evacuate health care facilities for public use." NMSA 1978, §
12-10A-6(A)(l). The Department of Health
also possesses the legal authority under the Public Health Act to "respond
to public health emergencies," "ensure the quality and accessibility
of health care services and the provision of health care when health care is
otherwise unavailable," "control and abate the causes of disease,
especially epidemics," and "maintain and enforce rules for the
control of conditions of public health importance." NMSA 1978, § 24-1-3.
NOW, THEREFORE, I, David R. Scrase,
M.D., Acting Secretary of the New Mexico Department of Health, in accordance
with the authority vested in me by the Constitution and the Laws of the State
of New Mexico, and as directed by the Governor pursuant to Executive Order
2021-059 under the full scope of her emergency powers under the All Hazard
Emergency Management Act and the Emergency Licensing Act, do hereby DECLARE that it is necessary for the
State to recognize that conditions requiring the potential implementation of
crisis-level standards of care are present, and hereby ORDER and DIRECT as
follows:
1, Prior to the implementation and
application of any crisis care plans or standards, an acute care hospital
facility must first (1) temporarily suspend any non-medically necessary
procedures taking place within the facility, and (2) maintain compliance with
all licensure requirements prescribed by NMDOH and Centers for Medicare and
Medicaid Services (“CMS”). The
Department shall provide information and training to acute care facilities
regarding the effect of implementing crisis standards of care and the process
for requesting any necessary licensure waivers from CMS.
2. For purposes of this Order,
“medically necessary procedures” include those services which cannot be delayed
without undue risk to the patient’s health, as determined by a qualified
medical professional. Examples of
criteria to consider in distinguishing between medical necessary and non-medically
necessary procedures include: (a) threat to a patient’s life; (b) threat of
permanent dysfunction of an extremity, including teeth, jaws and eyes; (c) risk
of metastasis or progression of staging; (d) prenatal and postnatal care; and
(e) any other factors that will conserve medical resources without creating
undue risk of permanent harm to patients.
3. This Order’s guidance on medically
necessary procedures is not meant to apply to (a) the provision of emergency
medical care or any actions necessary to provide treatment to patients with emergency
or urgent medical needs; and (b) any surgery that if not performed would result
in a serious condition of a patient worsening (e.g., removing a cancerous tumor
or a surgery intended to manage an infection).
4. This Order is not intended to and shall
not direct or authorize a facility or individual physician to change their
standard of care. Each acute care
facility, facility triage board, and individual physician shall remain
responsible for applying the standard of care applicable in their individual
circumstance.
I FURTHER DIRECT that the credentialing
and approval of providers credentialed under this Order shall be conducted as
follows:
1. Definitions
As used in this Order, the following terms shall have the meaning given to
them, except where the context clearly requires otherwise:
(a) "Applicant" means a natural
person who is licensed as a medical practitioner and who applies for
credentialing and approval as a Credentialed Physician or an Advanced Practice Clinician.
(b) "Application" means an
application for credentialing and approval of a person to be a Credentialed
Physician or Advanced Practice Clinician that is completed utilizing the
Department-approved application form.
(c) "Application form" means
the form available online at www.mnhealth.org.
(d) "Credentialed Advanced Practice
Clinician" means a natural person who is licensed as a healthcare
provider, who is credentialed and approved by the New Mexico Department of
Health for the purpose of deeming the person to be a public employee pursuant
to the Emergency Licensing Act and the New Mexico Tort Claims Act. Credentialed Advanced Practice Clinicians are
limited to the following:
(i) certified nurse practitioners
(licensed by the New Mexico Board of Nursing in accordance with NMSA 1978, §
61-3-23.2);
ii) certified registered nurse
anesthetists (licensed by the New Mexico Board of Nursing in accordable with
NMSA 1978, § 61-3-23.3);
iii) clinical nurse specialists (licensed
by the New Mexico Board of Nursing in accordance with NMSA 1978, § 61-3-23.4); and
iv) certified nurse-midwives (licensed by
the New Mexico Board of Nursing pursuant to the Nursing Practice Act and
licensed by the Department of Health as a certified nurse-midwife pursuant to
NMSA 1978, § 24-l-3(R) and NMAC
16.11.2).
(e) "Credentialed Physician"
means a medical doctor or doctor of osteopathic medicine who holds authority
under New Mexico law to provide medical care, who is credentialed and approved
by the New Mexico Department of Health for the purpose of deeming the person to
be a public employee pursuant to the Emergency Licensing Act and the New Mexico
Tort Claims Act.
(f) "Credentialed
Practitioner" means a Credentialed Physician or an Advanced Practice
Clinician.
(g) "Facility" means the acute
care hospital facility or institution at which an applicant intends to provide
medical services, whether for consideration or on a voluntary basis.
(h) ”Licensed" means licensed,
certified, or permitted to provide medical care to a person by an authorized
governmental licensing authority in the State of New Mexico.
2. Designation of Credentialed
Practitioners; Effect
The
Secretary of Health shall designate a physician as a Credentialed Physician, or
a clinician as a Credentialed Advanced Practice Clinician, based upon findings
that: (1) the physician/advanced practice clinician services will materially
farther the State's interest in public health and welfare, and (2) the
physician/advanced practice clinician possesses the requisite skills and
background necessary to provide care during the pendency of the existing health
emergency. The Secretary may weigh and
consider any additional factors the Secretary deems appropriate given the
operative facts and circumstances. The
Secretary shall implement an application process, as more set forth more fully
herein, for the purpose of identifying eligible medical practitioners and
assessing their scopes of current practice and clinical services proposed for
approval by the Department.
Credentialed Physicians and Credentialed
Advanced Practice Clinicians shall only be considered public employees for
purposes of the Tort Claims Act to the limited extent and in the limited
circumstance in which such Credentialed Practitioners provide medical care outside
of their normal and privileged scope of practice, and/or are serving as a
triage officer or triage board member, in a hospital acute care setting. NMSA 1978, §§ 41-4-1 to -27; NMSA 1978, §§
12-10-4, -11, -13.
(a) Application
Process
An applicant
or a facility affiliated with an applicant shall submit a completed application
to the e-mail address that is identified on the application form. The Secretary or his or her designee(s) shall
review the application and render a determination of whether to grant or deny
the application in whole or in part based on operative facts and circumstances,
including, but not limited to, the nature of the applicant's current primary
scope of medical practice, the nature of the applicant's proposed scope of
practice, the extent of deviation between the applicant's primary scope of
practice and proposed scope of practice, and other factors as the Secretary may
deem appropriate.
(b) Content
of Application
The
information required to be submitted in the application shall include, but need
not be limited to, the following:
1. Identity and contact information of
the applicant;
2. Professional qualifications of the
applicant, including the applicant's professional degree;
3. Main location of the facility;
4. Main scope of current practice;
5. Proposed practice
locations, including name
and contact information
for associated facilities;
6. Proposed scope of clinical
services;
7. Request for designation as a
Credentialed Physician or Credentialed
Advanced Practice Clinician;
8. Name and signature of applicant;
and
9. Proof of: agreement between the
applicant and the associated facility, that the facility is willing to permit
the performance of the identified proposed clinical services on the facility's
premises, and that the applicant is willing to perform such services.
(c) Disclaimer
The
Secretary or his or her designee may rescind approval of an application upon
notice to an affected applicant and associated facility for cause, which includes,
but is not limited to, falsification of any information included within the
application or any other information or material submitted to the
Department. A previously issued approval
of an application shall be deemed automatically rescinded upon the suspension
or revocation of an applicant's medical license by the applicant's professional
licensing authority.
A
Credentialed Practitioner and an associated facility shall at all times adhere
to applicable ethical standards.
I FURTHER DIRECT as follows:
1. This Order shall be broadly disseminated in English,
Spanish and other appropriate languages to the citizens of the State of New
Mexico.
2. This Order declaring restrictions
based upon the existence of a condition of public health importance shall not
abrogate any disease-reporting requirements set forth in the New Mexico Public
Health Act.
3. This Order shall take effect on October 18, 2021 and
remain in effect through November 17, 2021.
THIS ORDER supersedes any other previous orders, proclamations, or
directives in conflict. This Order shall take effect immediately and shall
remain in effect for the duration indicated in the Order unless otherwise
rescinded.
ATTEST:
DONE AT THE EXECUTIVE OFFICE
THIS 18TH DAY OF OCTOBER 2021
/ S
/
WITNESS MY HAND AND THE GREAT
MAGGIE TOULOUSE OLIVER SEAL
OF THE STATE OF NEW MEXICO
SECRETARY OF STATE
/ S /
DAVID
R. SCRASE, M.D.
ACTING SECRETARY OF THE STATE OF NEW
MEXICO
DEPARTMENT OF HEALTH