New Mexico Administrative Code
Title 16 - OCCUPATIONAL AND PROFESSIONAL LICENSING
Chapter 11 - MIDWIVES
Part 3 - LICENSED MIDWIVES
Section 16.11.3.11 - DISCIPLINARY ACTION
Universal Citation: 16 NM Admin Code 16.11.3.11
Current through Register Vol. 35, No. 24, December 23, 2024
A. Grounds for action:
(1) Incompetence. 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. It shall not be necessary to show that actual harm resulted from the act or omission or series of acts or omissions so long as the conduct is of such a character that harm could have resulted to the client or to the public from the act or omission or series of acts or omissions.
(2) Unprofessional conduct. For purposes of these regulations "unprofessional conduct" includes, but is not limited to, the following:
(a) dissemination of a client's health information or treatment plan acquired during the course of employment to individuals not entitled to such information and where such information is protected by law or hospital/agency policy from disclosure;
(b) falsifying or altering client records or personnel records for the purpose of reflecting incorrect or incomplete information;
(c) misappropriation of money, drugs or property;
(d) obtaining or attempting to obtain any fee for client services for one's self or for another through fraud, misrepresentation, or deceit;
(e) aiding, abetting, assisting or hiring an individual to violate any duly promulgated regulation of the departments midwife licensing authority;
(f) obtaining, possessing, administering or furnishing prescription drugs not on the department formulary listed in the "department of health practice guidelines for New Mexico licensed midwives" to any person, including but not limited to one's self;
(g) failure to make or keep accurate, intelligible entries in records as required by law, policy and standards for the practice of midwifery;
(h) obtaining or attempting to obtain a license to practice midwifery through fraud, deceit, misrepresentation or any other act of dishonesty in any phase of the licensure by examination or endorsement process, or relicensure process;
(i) practicing midwifery in New Mexico without a valid, current New Mexico license, permit, or modified permit or aiding, abetting or assisting another to practice midwifery without a valid, current New Mexico license;
(j) intentionally engaging in sexual contact with or toward a client in a manner that is commonly recognized as outside the scope of the individual midwife's practice;
(k) failure to care for a non-adherent client(s) as required in the "department of health practice guidelines for New Mexico licensed midwives" when the failure to care results or may result in potential or actual harm or danger to the client(s);
(l) engaging in the practice of midwifery when judgment or physical ability is impaired by alcohol or drugs or controlled substances;
(m) practice which is beyond the scope of LM licensure;
(n) delegation of medication administration, assessment, evaluation and judgment to non-licensed persons, or non-permitted apprentices/student midwives;
(o) verbally or physically abusing a client;
(p) failure to meet the documentation requirements of the bureau of vital records and health statistics regulations;
(q) violation of the department's regulations governing the practice of licensed midwifery;
(r) failure to provide the division in a timely manner with requested information.
(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 28-2-4 NMSA 1978.
(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 LM's practice as a registered, certified, or licensed health care provider in any jurisdiction. 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 LM 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 LM who appears to have violated the rule for the practice of licensed 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) 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 or request for settlement procedures set forth in Paragraphs (3) and (4) of Subsection C of 16.11.3.11 NMAC.
C. Disciplinary proceedings: Disciplinary proceedings are conducted in accordance with the Uniform Licensing Act (ULA), 61-1-1 et seq., NMSA 1978 and Open Meetings Act 10-15-1 et seq., NMSA 1978.
(1) Filing of a complaint:
(a) A written complaint must be filed with the division before a disciplinary proceeding can be initiated.
(i) A complaint is an allegation of a wrongful act(s) or an omission(s).
(ii) A complaint 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 division's licensed midwifery advisory board.
(2) Investigation of a complaint:
(a) All complaints alleging a violation of the regulations adopted by the public health division will be investigated to determine whether a violation of applicable law or rule has occurred.
(b) The complainant will receive from the division a notification of receipt of the complaint.
(c) The investigation may result in a notice of contemplated action (NCA), per the ULA, being issued by the division if a violation exists; or a dismissal of the complaint because no actionable violation can be substantiated. Once dismissal of a complaint is made following an investigation, the licensee will be notified of the dismissal.
(d) The department will notify the complainant of conclusion of the investigation and provide information as to public notification of any disciplinary action that has been taken as set forth in Subsection D of 16.11.3.11 NMAC.
(3) Notice of contemplated action:
(a) The NCA shall be drafted by the department.
(b) The director of the division, or the director's 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, as set forth in ULA at section 61-1-3 NMSA, before the department has authority to take any action that would result in disiplinary action.
(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 prosecuting attorney at any time prior to the hearing.
(i) If a settlement is negotiated, the proposed stipulation and agreement shall be presented to the department for final approval.
(ii) The proposed stipulation and agreement does not divest the department of the authority to require a formal hearing or final approval, amendment, or rejection.
(iii) If a settlement is not reached, a hearing shall be held.
(d) Once a hearing has been scheduled, any requests for a continuance must be presented to the division'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 as a default and make a decision.
(f) If no request for a hearing is made within the time and manner required by the ULA, the division 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 in accordance with 1.21.2 et al NMAC, Retention and Disposition of Public Records.
(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 departmentshall 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 LM 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 division's licensing authority.
(e) The hearing officer shall issue a report and recommended finding to the department secretary in accordance with the ULA.
(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, Section 61-1-14 NMSA 1978, and placed in the LM's licensure file. The department shall mail a copy of the written decision to any authority(ies) that license(s) the LM as a healthcare provider and shall report the decision to the NPDB if the decision is to uphold the disciplinary action.
D. Public notification of disciplinary action: The following are means in which disciplinary actions are made available to the public.
(1) Information regarding disciplinary actions shall be entered into the license file or applicant's file.
(2) Submission of disciplinary action to any appropriate disciplinary data bank or notification to each state in which the licensee holds a license or has been licensed.
E. Reinstatement of license:
(1) Individuals who request reinstatement of their license or who request that their probation be lifted must be prepared to provide the division 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 licensee's activities and progress during the period of probation, suspension or revocation.
(2) Requests for reinstatement of a revoked license for reasons other than noncompliance with Section 40-5A-1 to -13 NMSA 1978, Parental Responsibility Act, shall not be considered by the department prior to the expiration of one year from the date of the order of revocation. The date at which time the secretary of the department's signature is affixed to the order of revocation or suspension is the controlling date, unless otherwise specified in the order.
(3) Requests for reinstatement of a suspended license shall be considered at such time as provided by the department in the order of suspension.
(4) Reinstatement of a revoked or suspended license requires proof of meeting the renewal requirements as set forth in these regulations, any remedial education or supervised practice required by division, and payment of the reinstatement of a revoked license fee as set forth in Subsection G of 16.11.3.10 NMAC.
(5) 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.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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