TITLE 16 OCCUPATIONAL
AND PROFESSIONAL LICENSING
CHAPTER 10 MEDICINE
AND SURGERY PRACTITIONERS
PART 10 REPORTING
REQUIREMENTS FOR LICENSEES, APPLICANTS AND OTHER PERSONS AND ENTITIES
16.10.10.1 ISSUING
AGENCY: New Mexico Medical Board (the “board”).
[16.10.10.1 NMAC - Rp
16.10.10.1 NMAC, 9/17/2018]
16.10.10.2 SCOPE: This part
applies to all applicants and licensees under the jurisdiction of the Medical
Practice Act, Sections 61-6-1 to -35 NMSA 1978, and entities falling within the
scope of Section 61-6-16 NMSA 1978.
[16.10.10.2 NMAC - Rp
16.10.10.2 NMAC, 9/17/2018]
16.10.10.3 STATUTORY AUTHORITY: This
part is adopted pursuant to Paragraph (21) of Subsection D of Sections 61-6-15
and 61-6-16 NMSA 1978, and in accordance with the Impaired Health Care Provider
Act Sections 61-7-1 to 61-7-12 NMSA 1978.
[16.10.10.3 NMAC - Rp
16.10.10.3 NMAC, 9/17/2018]
16.10.10.4 DURATION: This part is
permanent.
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16.10.10.5 EFFECTIVE DATE: The
effective date of this part is September 17, 2018, unless a later date appears
at the end of a section.
[16.10.10.5 NMAC - Rp
16.10.10.5 NMAC, 9/17/2018]
16.10.10.6 OBJECTIVE: This part has
three objectives.
A. In
accordance with Paragraph (21) of Subsection D of Section 61-6-15 NMSA 1978,
this part defines the requirements for licensees and applicants to report to
the board actions taken against them by other licensing jurisdictions, peer
review bodies, health care entities, professional or medical societies and
associations, governmental agencies, law enforcement agencies, and courts for
acts or conduct similar to acts or conduct constituting grounds for action
under the Medical Practice Act.
B. In
accordance with Section 61-6-16 NMSA 1978, this part defines the requirements for
affected entities to report to the board:
(1) payments relating to malpractice
actions or claims arising in New Mexico involving licensees and applicants;
(2) professional
review actions; and
(3) actions
taken against licensees’ and applicants’ clinical privileges while the licensee
or applicant is under investigation or in lieu of investigation by the affected
entity.
C. In
accordance with the board’s statutory duty to protect the public health, safety
and welfare, and the ethical standards adopted by the board in 16.10.8 NMAC,
this part establishes mandatory reporting requirements for licensees and
applicants to ensure the board is informed of impaired, incompetent, disruptive
and unethical practitioners.
[16.10.10.6 NMAC - Rp
16.10.10.6 NMAC, 9/17/2018]
16.10.10.7 DEFINITIONS: The
following definitions apply to this section.
All terms not defined have their general dictionary meaning.
A. “Adverse
action” means any discipline, sanction or other action, whether equitable, administrative,
civil or criminal, affecting a licensee, applicant or other person falling
under the jurisdiction of the Medical Practice Act. The term embraces any action affecting the
licensee’s or applicant’s practice, including, but not limited to revocations,
suspensions, probation, monitoring, restrictions, and stipulations or other
limitations, as well as fines, penalties and financial settlements. The term also includes any action taken to
avoid disciplinary action, a sanction, or another action. An action does not need to involve clinical
competence or patient care or affect clinical privileges in order to be
“adverse”.
B. “Adversely affecting” means reducing, restricting, suspending, revoking,
denying, or failing to renew clinical privileges, or membership in a health
care entity to include: terminating employment for cause, or without cause when
based on incompetency or behavior affecting patient care and safety, or
allowing the licensee or applicant to resign rather than being terminated for such
reasons. These actions do not include
those instances in which a peer review entity requires supervision of a
licensee or applicant for purposes of evaluating that licensee’s or applicant’s
professional knowledge or ability.
C. “Clinical
privileges” include privileges, membership on the medical staff,
employment, and other circumstances under which a licensee or applicant is
permitted by a health care entity to furnish medical care.
D. “Termination
of employment” includes the termination of employment by a health care
entity for cause, or without cause if related to clinical competence or
behavior affecting patient safety/care, or allowing resignation in lieu of
termination for such reason.
E. “Health
care entity” means:
(1) a hospital, HMO, a physician group,
locum tenens or staffing agency, or other health care institution that is
licensed to provide health care services in New Mexico;
(2) an entity that provides health care
services and that follows a formal peer review process for the purpose of
furthering quality health care;
(3) a professional society or a
committee, or agent thereof, of licensed health care practitioners at the
national, state or local level, that follows a formal peer review process for
the purpose of furthering quality health care, including without limitation a
health maintenance organization or other prepaid medical practice which is
licensed or determined to be qualified by any state; and
(4) a health plan or network that
partners payers, employers and health care providers and professionals,
including preferred provider groups, specialty groups, physician-hospital
organizations and workers’ compensation networks.
F. “Medical
malpractice action or claim” means a written claim or demand for
compensation based on the furnishing, or failure to furnish, health care
services, and includes, without limitation, the filing of a cause of action,
based on the law of tort, brought in any court of any state or the United
States seeking monetary damages whether resulting in a settlement or in a
judgment.
G. “Professional
review action” means an action of a health care entity:
(1) taken in the course of professional
review activity;
(2) based on the competence, conduct, or
impairment of a licensed health care practitioner which affects or could affect
adversely the health or welfare of a patient or patients; and,
(3) which adversely affects or may
adversely affect the clinical privileges or membership in a professional
society of a licensed health care professional.
H. “Professional
review activity” means an activity of a health care entity with respect to
an individual licensee or applicant:
(1) to determine whether the licensee or
applicant may have clinical privileges with respect to, or membership in, the
entity;
(2) to determine the scope or conditions
of such privileges or membership; or
(3) to change or modify such privileges
or membership.
I. “Credentialing discrepancy” means, for the purposes of this part,
an error or omission in an application.
[16.10.10.7 NMAC - Rp
16.10.10.7 NMAC, 9/17/2018; A,
2/8/2022]
16.10.10.8 REPORTING OF MEDICAL MALPRACTICE
PAYMENTS BY ENTITIES AND PERSONS:
A. Each person or entity, including an insurance company, which makes a
payment under a policy of insurance, self-insurance or otherwise, in settlement
of, or in whole or partial satisfaction of, a judgment in a malpractice action
or claim must file a report with the board within 30 days after any initial or
complete payment is made.
B. Applicants and licensees must file
a report with the board within 30 days after any initial or complete payment is
made by them, or directly or indirectly on their behalf.
C. Reports filed under this section
shall include, at a minimum:
(1) the name, license number, and social
security number of the named licensee or applicant;
(2) the name and address of the person or
entity making the payment;
(3) the name, title and telephone number
of the person submitting the report;
(4) the date or dates on which the act(s)
or omission(s) giving rise to the claim occurred;
(5) the date of judgment or settlement;
(6) the amount paid, the date of payment
and whether payment is made in satisfaction of a judgment or constitutes a
settlement;
(7) a description of terms of the
judgment or settlement and any conditions attached thereto, including terms of
payment;
(8) a description of the alleged acts or
omissions and injuries or illnesses upon which the action or claim is based;
and,
(9) the official addendum to the licensee’s
or applicant’s data bank report.
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16.10.10.9 REPORTING OF ACTIONS ADVERSELY AFFECTING CLINICAL PRIVILEGES:
A. All health care entities, licensees
and applicants shall report any action adversely affecting the clinical
privileges of the licensee or applicant within thirty days after the action is
taken.
B. Actions the health care entity must report include, but are not limited
to:
(1) any professional review action
adversely affecting the clinical privileges of a licensee or applicant, except
as provided in Subsection C of this section;
(2) the health care entity’s acceptance
of the surrender of clinical privileges or any restriction on such privileges
as a result of or relating to possible incompetency or improper professional
conduct while the licensee or applicant is under investigation, or in return
for the health care entity’s decision not to conduct an investigation or
proceeding;
(3) any professional review action taken
by a professional society adversely affecting the membership of a licensee or
applicant in the society;
(4) the failure to complete medical
records where the failure relates to the licensee’s or applicant’s professional
competence or conduct, or the failure could or did adversely affect a patient’s
health or welfare; and
(5) a positive drug test for illegal
substances, alcohol or prescribed or un-prescribed medications not supported by
appropriate diagnosis (the board will not require name of the licensee or
applicant if the licensee or applicant has voluntarily self-reported to the New
Mexico health professional wellness program (HPWP), or any successor
organization).
C. Reports of actions adversely
affecting clinical privileges must include, at a minimum:
(1) the name, license number, and social
security number of the licensee or applicant;
(2) a description of the act(s) or omission(s) or other reasons for the
action or for the surrender of privileges;
(3) the action taken, the date the action was taken, and the effective date
of the action; and,
(4) any official addendum to the
licensee’s or applicant’s data bank report.
D. A health care entity is not required
to report to the board:
(1) actions based on the licensee’s or
applicant’s association, or lack of association, with a professional society or
association;
(2) actions based on fees, advertising,
or other competitive acts intended to solicit or retain business;
(3) actions based on the licensee’s or
applicant’s participation in prepaid group health plans;
(4) actions based on the licensee’s or
applicant’s association with, supervision of, delegation of authority to,
support for, training of, or participation in a private group practice; or
(5) any other matter that does not relate
to the competence or professional conduct of a licensee or applicant; and
(6) suspensions of clinical privileges
resulting from a failure to complete medical records, except to the extent such
failures are reportable under Paragraph (4) of Subsection A of this section, maintain
insurance or perform other administrative obligations.
E. Subsequent disposition of an action
adversely affecting the licensee or applicant, even if favorable, does not
alter a health care entity’s duty to report the action.
[16.10.10.9 NMAC - Rp 16.10.10.9
NMAC, 9/17/2018]
16.10.10.10 REPORTING
OF CREDENTIALING DISCREPANCIES: Any
health care entity having information about a licensee or applicant that
conflicts with information the licensee or applicant included on an application
or re-application submitted with a signed attestation of accuracy, shall report
the discrepancy to the board within 90 days.
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16.10.10.11 SANCTIONS
FOR FAILURE TO REPORT:
A. Medical malpractice payments. Any health care entity or person failing to
report malpractice payments required by this part shall be subject to a civil
penalty not to exceed ten thousand dollars ($10,000).
B. Actions adversely affecting clinical
privileges. Any health care entity or
professional review body failing to comply with the reporting requirements set
forth in this part shall be subject to a civil penalty not to exceed ten
thousand dollars ($10,000). The board
will report the failure to comply to the data bank as required by 42 U.S.C. Section
11133.
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16.10.10.12 Confidential Communications: Any information or report submitted to the
board under this part, or pursuant to 42 U.S.C. 11131-11152, as amended, shall
be confidential and shall be disclosed only to the licensee or applicant,
unless otherwise authorized or required by law.
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16.10.10.12 NMAC, 9/17/2018]
16.10.10.13 Reporting OF ADVERSE ACTIONS BY LICENSEES AND
APPLICANTS:
A. in addition to the reporting requirements contained in
Section 16.10.10.8 and 16.10.10.9 NMAC, a licensee or applicant shall report to
the board any adverse action affecting the licensee or applicant taken by
another licensing jurisdiction; a peer review body; a health care entity; a professional
or medical society or association; a governmental agency; a law enforcement
agency, including arrests; and any court for acts or conduct similar to acts or
conduct that would constitute grounds for action under the Medical Practice
Act.
B. Licensees and applicants must report to the board any adverse action
taken against them or their license within 30 days after the date the action
occurs or is taken. For the purpose of
this section, an “action occurs or is taken” on the date an entity described in
this section takes action, regardless of whether the action is subject to
appeal or an appeal is taken. Any
subsequent disposition of the adverse action, regardless of whether such
disposition negates or affects the adverse action, does not alter this
reporting requirement. In the case of an
arrest, the licensee or applicant shall report the arrest within 30 days.
C. The failure to report any adverse
action shall constitute unprofessional or dishonorable conduct under Subsection
D of Section 61-6-15 NMSA 1978 of the Medical Practice Act.
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16.10.10.13 NMAC, 9/17/2018]
16.10.10.14 REPORTING
IMPAIRED, INCOMPETENT, DISRUPTIVE OR UNETHICAL COLLEAGUES:
A. Consistent with 16.10.8.9 NMAC (adopting the ethical standards of the
American medical association), licensees and applicants having a good faith
basis for believing that the public health and safety may be at risk must
report impaired, incompetent, disruptive and unethical colleagues, including
specifically other licensees and applicants.
“Impaired” means any condition affecting the ability to engage safely
and effectively in professional activities.
“Incompetent” includes practices or conduct creating the potential for
harm, whether or not harm has resulted.
“Unethical” includes, but is not limited to corrupt, dishonest or
illegal actions.
B. The duty to report imposed by
this section does not limit or replace the duty to report to other
organizations or entities, including law enforcement.
C. Reports under this section may
be made anonymously, but must include sufficient information to allow
investigation by the board.
D. Reports made under this section
will be held in confidence in the same manner as all investigations by the
board.
E. Specifically exempt from the
reporting requirements contained in this section are “peer review”
communications protected by law.
F. The submission of a false or
malicious report under this section constitutes unethical conduct subject to
disciplinary action.
[16.10.10.14 NMAC – N,
9/17/2018]
16.10.10.15 SELF-REPORTING:
A. All applicants and licensees
have a duty to self-report to the board any mental illness, physical illness
(including but not limited to deterioration through the aging process or loss of
motor skill), or habitual use or abuse of drugs, as defined in the Controlled
Substances Act, Section 31-31-1 to 31-31-41 NMSA 1978, or alcohol that affects
their ability to practice with reasonable skill or safety to patients.
B. Reports made under this section
may subject the licensee or applicant to action by the board where necessary to
ensure public health, safety and welfare.
[16.10.10.15 NMAC - N,
9/17/2018]
HISTORY OF 16.10.10 NMAC:
Pre-NMAC History: Material in this part was
derived from that previously filed with the Commission of Public Records -
State Records Center and Archives:
Rule 16, Report of
Settlements and Judgments and Adverse Action, 7/10/1990.
Rule 15, Report of
Settlements and Judgments and Adverse Action, 6/21/1993.
NMAC History:
16 NMAC 10.15, Report of
Settlements and Judgments and Adverse Action, 3/18/1996.
16 NMAC 10.10, Report of
Settlements and Judgments and Adverse Action, 3/5/1997.
History of Repealed Material:
16 NMAC 10.10, Report of
Settlements and Judgments and Adverse Action - Repealed 7/15/2001.
16.10.10 NMAC, Report of
Settlements, Judgments, Adverse Actions and Credentialing Discrepancies filed
6/8/2001 – Repealed effective 9/17/2018.
16.10.10 NMAC, Report of
Settlements, Judgments, Adverse Actions and Credentialing Discrepancies filed
6/8/2001 was replaced by 16.10.10 NMAC, Reporting Requirements for Licensees,
Applicants and Other Persons and Entities, effective 9/17/2018.