New Mexico Register / Volume XXXIII,
Issue 3 / February 8, 2022
This is an amendment to 16.10.5 NMAC, Section 3, 7, 9,
10, 11, 14, 15 and 16 effective 2/8/2022.
16.10.5.3 STATUTORY
AUTHORITY: This part is promulgated pursuant to and in
accordance with the Medical Practice Act, Sections 61-6-1 through 61-6-35 NMSA
1978, the Uniform Licensing Act, section 61-1-1 through 61-1-33 NMSA 1978, [and]
the Impaired Health Care Provider Act, Section 61-7-1 through 61-7-12 NMSA 1978,
the Genetic Counseling Act, Section 61-6A-1 through 61-6A-10 NMSA 1978, the
Polysomnography Practice Act, Section 61-6B-1 through 61-6B-10 NMSA 1978, the
Naprapathic Act, Sections 61-12F-1 through 61-12F-13 NMSA 1978, and the
Naturopathic Doctors’ Act, Section 61-12G-1 through 61-12G-11 NMSA 1978.
[16.10.5.3
NMAC - Rp 16 NMAC 10.5.3, 4/18/2002; A, 1/1/2009; A, 2/8/2022]
16.10.5.7 DEFINITIONS:
A. “License” means a document granting
legal permission to a physician, a physician assistant, anesthesiologist
assistant, genetic counselor, or a polysomnographic technologist, naprapathic
practitioner, or a naturopathic physician, to practice in the state of New
Mexico.
B. “Licensee” means a physician,
physician assistant, anesthesiologist assistant, genetic counselor, or a
polysomnographic technologist, naprapathic practitioner, or naturopathic
physician, who has been granted permission to practice in the state of New
Mexico.
[16.10.5.7
NMAC - Rp 16 NMAC 10.5.7, 4/18/2002; A, 1/1/2009; A, 2/14/2013; A, 2/8/2022]
16.10.5.9 REVOCATION
OF LICENSE:
A. Action
prior to revocation: Prior to revoking any license for
any violation of the Medical Practice Act, or the Impaired Health Care Provider
Act, the board shall give the licensee written notice and an opportunity to
request a hearing pursuant to the Uniform Licensing Act.
B. Terms
of revocation: A licensee whose license is
revoked may not practice in any manner under that license.
C. Revocation
under the Medical Practice Act: All
revocations pursuant to the Medical Practice Act are permanent and no such
license revoked shall be reinstated.
Persons seeking licensure after revocation under the Medical Practice
Act shall file a new application for licensure with the board, under the rules for new applicants.
D. Relicensing
after revocation under the Impaired Health Care Provider Act: A [physician or physician assistant] licensee
whose license has been revoked pursuant to the Impaired Health Care
Provider Act may petition for reinstatement pursuant to section 61-7-9 NMSA
1978.
[16.10.5.9
NMAC - Rp 16 NMAC 10.5.10, 4/18/2002; A, 1/1/2009; A, 2/14/2013; A, 2/8/2022]
16.10.5.10 SUSPENSION
OF LICENSE:
A. Action prior
to suspension: Except as provided in the
Impaired Health Care Provider Act, or in a disciplinary order entered after a
hearing, or pursuant to Subsection C of 16.10.5.15 NMAC below, prior to
suspending any license, the board shall give the licensee written notice and an
opportunity to request a hearing pursuant to the Uniform Licensing Act.
B. Terms of
suspension: The board may suspend a license for either a
specified period of time or indefinitely.
A licensee whose license is suspended may not practice in any manner
under that license during the period of suspension.
C. Reinstatement: Unless otherwise established by the board:
(1) If
the board has suspended a license indefinitely, the licensee must [petition]
apply to the board for reinstatement.
If reinstatement is initially denied, the licensee may [petition]
apply for reinstatement on a yearly basis thereafter.
(2) If
the board sets a date after which a license may be reinstated, the board will
consider [a] an [petition] application for
reinstatement only after that date. The
licensee may [petition] apply for reinstatement on a yearly basis
thereafter.
(3) A
[physician] licensee whose license has been suspended pursuant to
the Impaired Health Care Provider Act may [petition] apply for
reinstatement pursuant to 61-7-9 NMSA, 1978, if the [physician] licensee
can meet the statutory requirements. If
the reinstatement is denied, the licensee may [petition] apply for
reinstatement on a yearly basis thereafter.
[16.10.5.10
NMAC - Rp 16 NMAC 10.5.11, 4/18/2002; A, 1/1/2009; A, 2/8/2022]
16.10.5.11 PROBATION:
A. General: The board may stay any disciplinary action
taken and place a licensee on probation with a requirement that the licensee
comply with [terms of probation] certain terms and conditions. The board may also place a licensee on
probation without taking other disciplinary action.
B. Terms of probation: The terms of the probation shall be set forth
in writing. The licensee on probation
may continue to practice under the license so long as the licensee complies
with all terms of probation.
C. Violation
of probation: If [probation is granted and]
the terms of the probation are [then] violated, the board shall give the
applicant written notice and an opportunity to request a hearing pursuant to
the Uniform Licensing Act prior to taking further disciplinary action, unless
the order of probation contains a provision for the [summary] immediate
suspension of the license.
[16.10.5.11
NMAC - Rp 16 NMAC 10.5.13, 4/18/2002; A, 1/1/2009; A, 2/8/2022]
16.10.5.14 [RESERVED] REIMBURSEMENT
OF COSTS: Where a disciplinary proceeding
resulting in a board order imposing disciplinary action of any kind, the board
may impose reimbursement of costs against the licensee.
[16.10.5.14
NMAC - Rp 16 NMAC 10.5.16, 4/18/2002; - Repealed, 4/3/2005; N, 2/8/2022]
16.10.5.15 STIPULATION:
A. Power to enter into stipulations: The
board may come to an agreement and enter into a stipulation with a licensee at
any time. In a stipulation, the parties
may agree to any disciplinary or other action that the board is authorized to
take by law.
B. Contents: The stipulation shall be in writing, shall
contain the agreed upon conditions or restrictions on the licensee and
shall be signed by the board and the licensee.
The stipulation shall contain statements that the licensee:
(1) knows and understands the applicable statutory and regulatory
provisions setting forth the authority and power of the board; and
(2) understands that entering into a stipulation regarding the
case results in a waiver of the licensee’s rights under the Uniform Licensing
Act, the Medical Practice Act, or the Impaired Health Care Provider Act, as
applicable, including the right to appeal.
C. Violation of a stipulation: The licensee, by accepting a stipulation,
agrees the board may immediately suspend a license [and the board may
agree that the board may take immediate action to suspend a license, as set
forth in the stipulation,] if the board has reasonable cause to believe
that any term of the stipulation has been violated, without the licensee
being given an opportunity to request a hearing. The immediate suspension remains in effect
until a further order of the board is entered.
The board shall issue a notice of contemplated action within 10 days of
the issuance of an immediate suspension.
In this case, the stipulation shall provide that the board shall give
notice of the disciplinary action to the licensee at the [last known]
address of record maintained by the board of the licensee pursuant to
the provisions of the Uniform Licensing Act.
An immediate suspension is separate and distinct from a summary
suspension described in 16.10.5.16 NMAC below.
D. Costs: In all appropriate cases, the payment of
costs of investigating and preparing the case, [including reasonable
prosecuting attorney’s fees,] may be negotiated as part of the stipulation.
[16.10.5.15
NMAC - Rp 16 NMAC 10.5.17, 4/18/2002; A, 1/1/2009; A, 2/8/2022]
16.10.5.16 SUMMARY SUSPENSION: This is a formal preliminary disciplinary
action that [immediately] summarily suspends a licensee’s right
to practice. The summary suspension
remains in effect until a further order of the board is entered. The licensee has an opportunity for a full
hearing before the board on the summary suspension.
A. The board may summarily suspend or restrict a license
issued by the board without a hearing, simultaneously with, or at any time
after, the issuance of a notice of contemplated action (NCA) and the initiation
of proceedings for a hearing provided for under the Uniform Licensing Act on
the NCA, if the board finds that evidence in its possession indicates that the
licensee:
(1) poses a clear and immediate danger to
the public health and safety if the licensee continues to practice;
(2) has been adjudged mentally
incompetent by a final order or adjudication by a court of competent
jurisdiction; or
(3) has pled guilty to or been found
guilty of any offense related to their practice or for any violent criminal
offense in this state or a substantially equivalent criminal offense in another
U.S. jurisdiction.
B. A licensee is not required to comply with a summary
action until service of the action has been made personally or by certified
mail, return receipt requested, at the licensee’s [last known] address of
record maintained by the board [as shown in the board’s records], or
the licensee has actual knowledge of the order, whichever occurs first. The board’s executive director may sign a
summary suspension order that the board has authorized.
C. A licensee whose license is summarily suspended is
entitled to a hearing before the board on the summary suspension order,
pursuant to the Uniform Licensing Act, within [fifteen (15)] 15
days from the date the licensee requests a hearing. This hearing request shall be in writing,
addressed to the board, delivered by certified mail, return receipt requested.
[16.10.5.16 NMAC - N, 1/1/2009; A, 2/8/2022]