New Mexico Register / Volume XXXIV,
Issue 13 / July 18, 2023
TITLE 16 OCCUPATIONAL AND PROFESSIONAL
LICENSING
CHAPTER 10 MEDICINE AND SURGERY PRACTITIONERS
PART 5 DISCIPLINARY POWER OF THE BOARD
16.10.5.1 ISSUING
AGENCY: New Mexico Medical Board, hereafter called the board.
[16.10.5.1 NMAC - Rp/E, 16.10.5.1 NMAC, 7/7/2023]
16.10.5.2 SCOPE: This part applies to licensees and applicants
for licensure.
[16.10.5.2
NMAC - Rp/E, 16.10.5.2 NMAC, 7/7/2023]
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, 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/E, 16.10.5.3 NMAC, 7/7/2023]
16.10.5.4 DURATION: Permanent.
[16.10.5.4
NMAC - Rp/E, 16.10.5.4 NMAC, 7/7/2023]
16.10.5.5 EFFECTIVE
DATE: July 7,2023, unless
a later date at the end of a section.
[16.10.5.5
NMAC - Rp/E, 16.10.5.5 NMAC, 7/7/2023]
16.10.5.6 OBJECTIVE: This part establishes procedures for license
denial, revocation of license, suspension of license, probation, censure and
reprimand, fines, costs and stipulations.
[16.10.5.6
NMAC - Rp/E, 16.10.5.6 NMAC, 7/7/2023]
16.10.5.7 DEFINITIONS:
A. “License” means a document granting
legal permission to any practitioner licensed pursuant to the medical practice
act, to practice in the state of New Mexico.
B. “Licensee” means any practitioner
governed by the medical practice act, who has been granted permission to
practice in the state of New Mexico.
[16.10.5.7
NMAC - Rp/E, 16.10.5.7 NMAC, 7/7/2023]
16.10.5.8 DISCIPLINARY
POWER OF THE BOARD: Pursuant to Sections 61-6-5,
61-6-8, 61-6-15 and 61-7-8 NMSA, 1978, the board has the power to suspend or
revoke a license, place a licensee on probation under such terms and conditions
as the board deems necessary after a
hearing or pursuant to a stipulation
with a licensee. Further, under the
Medical Practice Act the board has the power to deny a license application, to
deny a license renewal, to censure, to reprimand or to
fine a licensee.
[16.10.5.8
NMAC - Rp/E, 16.10.5.8 NMAC, 7/7/2023]
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 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/E, 16.10.5.9 NMAC, 7/7/2023]
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 a
specified period of time. 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 sets a date after which a license may be
reinstated, the board will consider an application for reinstatement only after
that date. The licensee may apply for
reinstatement on a yearly basis thereafter.
(2) A licensee whose license has been suspended
pursuant to the Impaired Health Care Provider Act may apply for reinstatement pursuant to Section 61-7-9
NMSA1978, if the licensee can meet the statutory requirements. If the reinstatement is denied, the licensee
may apply for reinstatement on a yearly basis thereafter.
[16.10.5.10
NMAC - Rp/E, 16.10.5.10 NMAC, 7/7/2023]
16.10.5.11 PROBATION:
A. General: Probation means to allow, for a stated period of time, the conduct authorized by a license, subject
to a licensee’s license conditions or other restrictions that are reasonably
related to the grounds for such restrictions.
The board may stay any disciplinary action taken and place a licensee on
probation with a requirement that the licensee comply with 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 the terms of the probation are
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 immediate suspension of the license.
The initial order of probation may also contain a provision for a new
stated period or term of probation if any term of probation is violated.
D. Conditions
of probation: Conditions of probation may
include monitoring or other directed management or supervision during the
stated period of probation.
[16.10.5.11
NMAC - Rp/E, 16.10.5.11 NMAC, 7/7/2023]
16.10.5.12 CENSURE
AND REPRIMAND: The board may issue a letter of
censure or reprimand to a licensee for any minor violation of the Medical Practice Act pursuant to Section
61-1-3 of the Uniform Licensing Act.
[16.10.5.12
NMAC - Rp/E, 16.10.5.12 NMAC, 7/7/2023]
16.10.5.13 FINES:
A. The board may impose a fine on a licensee for
each violation of the Medical Practice Act after giving the licensee written
notice and an opportunity to request a hearing pursuant to the Uniform
Licensing Act. If the licensee’s action
constitutes more than one violation of the Medical Practice Act, the board may
impose a fine for each violation.
B. The
board may impose a fine in an amount not to exceed ten thousand dollars
($10,000) for each violation against a person who, without an active license,
engages in a violation of the Medical Practice Act.
C. All
fines collected by the board pursuant to Subsection B of 16.10.5.13 NMAC shall
be deposited to the credit of the current school fund as provided in Section 4
of Article 12 of the constitution of New Mexico.
[16.10.5.13
NMAC - Rp/E, 16.10.5.13 NMAC, 7/7/2023]
16.10.5.14 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 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 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
16.10.5.15 NMAC below.
[16.10.5.14
NMAC - Rp/E, 16.10.5.14 NMAC, 7/7/2023]
16.10.5.15 SUMMARY SUSPENSION: This is a formal preliminary disciplinary
action that 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; or
(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 address of record maintained
by the board, 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 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.
[16.10.5.15
NMAC - Rp/E, 16.10.5.15 NMAC, 7/7/2023]
16.10.5.16 LIMITATIONS:
A. Limitations on actions are governed by Section 61-6-24
NMSA 1978.
B. For
purposes of Subsection 1 of Section 61-1-3 NMSA 1978, discovery of the conduct
by the board is considered the date on which a complaint or other information
that would reasonably connect the allegations to the licensee was received by
the board or board staff.
C. Receipt
of a complaint by the board or board staff is established by the complaint and
investigation process published in 16.10.6.8 NMAC.
[16.10.5.16
NMAC - Rp/E, 16.10.5.16 NMAC, 7/7/2023]
HISTORY OF 16.10.5 NMAC:
Pre-NMAC History: The material in this part was derived from that previously filed with
State Records Center and Archives under:
Rule 7, Disciplinary Power of
Board Over Physician Assistants, filed 6/21/1993.
BME Rule 7, Disciplinary
Power of Board Over Physician Assistants filed 12/19/1989.
BME MD01-MD031, Board of
Medical Examiners Model Disciplinary Order, filed 1/22/1985.
BME MDG1-MDG20, Manual of
Disciplinary Guideline and Model Disciplinary Orders, filed 1/22/1985.
History of Repealed
Material:
16 NMAC 10.5, Disciplinary
Power of the Board - Repealed 4/18/2002.
16.10.5 NMAC - Disciplinary Power of the Board filed 3/18/2002,
emergency Repealed 7/7/2023.
Other:
16.10.5 NMAC - Disciplinary
Power of the Board filed 3/18/2002 was Replaced by 16.10.5 NMAC - Disciplinary
Power of the Board 7/7/2023.