New Mexico Administrative Code
Title 16 - OCCUPATIONAL AND PROFESSIONAL LICENSING
Chapter 11 - MIDWIVES
Part 2 - CERTIFIED NURSE - MIDWIVES
Section 16.11.2.12 - LICENSE DENIAL, SUSPENSION, OR REVOCATION; DISCIPLINARY ACTION
Universal Citation: 16 NM Admin Code 16.11.2.12
Current through Register Vol. 35, No. 18, September 24, 2024
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 V 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 pursuant to Paragraph (1) of Subsection A of Section 28-2-4
NMSA.
(6) Conviction or entered
into an agreed disposition, of a misdemeanor offense related to the practice of
midwifery as determined on a case-by-case basis.
(7) 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.
(8) Conduct
resulting in the suspension or revocation of a registration, license, or
certification to perform as a health care provider.
(9) 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.
(10) Failure to report to
the department a change in contact information within 30 days of the change as
set forth in Subsection G of
16.11.2.9 NMAC.
(11) Non-compliance for requirements of CEs
as determined by audit as set forth in Paragraph (2) of Subsection B of
16.11.2.10 NMAC.
(12) 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 of 16.11.2.12 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 (ULA). Disciplinary proceedings related to a CNM's treatment of a client, 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), as defined in the ULA, 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 NPDB.
(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 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 revoked license fee of Paragraph
(4) of Subsection F of
16.11.2.9 NMAC.
(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 suspended license fee of Paragraph (4) of Subsection F of
16.11.2.9 NMAC.
(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.
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