SENATE HEALTH AND PUBLIC AFFAIRS COMMITTEE SUBSTITUTE FOR
SENATE BILL 256
56th legislature - STATE OF NEW MEXICO - first session, 2023
AN ACT
RELATING TO PROFESSIONAL LICENSURE; AMENDING SECTIONS OF THE UNIFORM LICENSING ACT, NURSING PRACTICE ACT, MEDICAL PRACTICE ACT, PROFESSIONAL PSYCHOLOGIST ACT, COUNSELING AND THERAPY PRACTICE ACT AND SOCIAL WORK PRACTICE ACT TO MAKE THE USE OF AVERSIVE THERAPY OR CONDITIONING IN CONVERSION THERAPY TO ANY PERSON, REGARDLESS OF AGE, SUBJECT TO DISCIPLINARY ACTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 61-1-3.3 NMSA 1978 (being Laws 2017, Chapter 132, Section 1) is amended to read:
"61-1-3.3. CONVERSION THERAPY--GROUNDS FOR DISCIPLINARY ACTION.--
A. A person licensed pursuant to provisions of Chapter 61 NMSA 1978 shall not provide conversion therapy to any person under eighteen years of age. A person licensed pursuant to provisions of Chapter 61 NMSA 1978 shall not use aversive therapy or conditioning in conversion therapy. The provision of conversion therapy in violation of the provisions of this subsection shall be grounds for disciplinary action by a board in accordance with the provisions of the Uniform Licensing Act.
B. As used in this section:
(1) "aversive therapy or conditioning" means conduct in behavioral therapy causing physical stimuli in the patient with the aim of reducing unwanted behavior;
[(1)] (2) "conversion therapy" means any practice or treatment that seeks to change a person's sexual orientation or gender identity, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward persons of the same sex. "Conversion therapy" does not mean:
(a) counseling or mental health services that provide acceptance, support and understanding of a person without seeking to change gender identity or sexual orientation; or
(b) mental health services that facilitate a person's coping, social support, sexual orientation or gender identity exploration and development, including an intervention to prevent or address unlawful conduct or unsafe sexual practices, without seeking to change gender identity or sexual orientation;
[(2)] (3) "gender identity" [means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord with or opposed to the person's physical anatomy, chromosomal sex or sex at birth] has the same meaning as set forth in Section 28-1-2 NMSA 1978; and
[(3)] (4) "sexual orientation" [means heterosexuality, homosexuality or bisexuality, whether actual or perceived] has the same meaning as set forth in Section 28-1-2 NMSA 1978."
SECTION 2. Section 61-3-28 NMSA 1978 (being Laws 1968, Chapter 44, Section 24, as amended) is amended to read:
"61-3-28. DISCIPLINARY PROCEEDINGS--JUDICIAL REVIEW--
APPLICATION OF UNIFORM LICENSING ACT--LIMITATION.--
A. In accordance with the procedures contained in the Uniform Licensing Act, the board may deny, revoke or suspend any license held or applied for under the Nursing Practice Act, reprimand or place a licensee on probation or deny, limit or revoke the multistate licensure privilege of a nurse desiring to practice or practicing professional registered nursing or licensed practical nursing as provided in the Nurse Licensure Compact upon grounds that the licensee, applicant or nurse:
(1) is guilty of fraud or deceit in procuring or attempting to procure a license or certificate of registration;
(2) is convicted of a felony;
(3) is unfit or incompetent;
(4) is intemperate or is addicted to the use of habit-forming drugs;
(5) is mentally incompetent;
(6) is guilty of unprofessional conduct as defined by the rules and regulations adopted by the board pursuant to the Nursing Practice Act;
(7) has willfully or repeatedly violated any provisions of the Nursing Practice Act, including any rule or regulation adopted by the board pursuant to that act;
(8) was licensed to practice nursing in any jurisdiction, territory or possession of the United States or another country and was the subject of disciplinary action as a licensee for acts similar to acts described in this subsection. A certified copy of the record of the jurisdiction, territory or possession of the United States or another country taking the disciplinary action is conclusive evidence of the action; [or]
(9) uses conversion therapy on a minor; or
(10) uses aversive therapy or conditioning in conversion therapy.
B. Disciplinary proceedings may be instituted by any person, shall be by complaint and shall conform with the provisions of the Uniform Licensing Act. Any party to the hearing may obtain a copy of the hearing record upon payment of costs for the copy.
C. Any person filing a complaint shall be immune from liability arising out of civil action if the complaint is filed with reasonable care.
D. The board shall not initiate a disciplinary action more than two years after the date that it receives a complaint.
E. The time limitation contained in Subsection D of this section shall not be tolled by any civil or criminal litigation in which the licensee or applicant is a party, arising substantially from the same facts, conduct, transactions or occurrences that would be the basis for the board's disciplinary action.
F. The board may recover the costs associated with the investigation and disposition of a disciplinary proceeding from the nurse who is the subject of the proceeding if the nurse is practicing professional registered nursing or licensed practical nursing pursuant to a multistate licensure privilege as provided in the Nurse Licensure Compact.
G. As used in this section:
(1) "aversive therapy or conditioning" means conduct in behavioral therapy causing physical stimuli in the patient with the aim of reducing unwanted behavior;
[(1)] (2) "conversion therapy" means any practice or treatment that seeks to change a person's sexual orientation or gender identity, including any effort to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward persons of the same sex. "Conversion therapy" does not mean:
(a) counseling or mental health services that provide acceptance, support and understanding of a person without seeking to change gender identity or sexual orientation; or
(b) mental health services that facilitate a person's coping, social support, sexual orientation or gender identity exploration and development, including an intervention to prevent or address unlawful conduct or unsafe sexual practices, without seeking to change gender identity or sexual orientation;
[(2)] (3) "gender identity" [means a person's self-perception, or perception of that person by another, of the person's identity as a male or female based upon the person's appearance, behavior or physical characteristics that are in accord or opposed to the person's physical anatomy, chromosomal sex or sex at birth] has the same meaning as set forth in Section 28-1-2 NMSA 1978;
[(3)] (4) "minor" means a person under eighteen years of age; and
[(4)] (5) "sexual orientation" [means heterosexuality, homosexuality or bisexuality, whether actual or perceived] has the same meaning as set forth in Section 28-1-2 NMSA 1978."
SECTION 3. Section 61-6-15 NMSA 1978 (being Laws 1969, Chapter 46, Section 6, as amended) is amended to read:
"61-6-15. LICENSE MAY BE REFUSED, REVOKED OR SUSPENDED--LICENSEE MAY BE FINED, CENSURED OR REPRIMANDED--PROCEDURE--PRACTICE AFTER SUSPENSION OR REVOCATION--PENALTY--UNPROFESSIONAL AND DISHONORABLE CONDUCT DEFINED--FEES AND EXPENSES.--
A. The board may refuse to license and may revoke or suspend a license that has been issued by the board or a previous board and may fine, censure or reprimand a licensee upon satisfactory proof being made to the board that the applicant for or holder of the license has been guilty of unprofessional or dishonorable conduct. The board may also refuse to license an applicant who is unable to practice as a physician, practice as a physician assistant, an anesthesiologist assistant, a genetic counselor, a naturopathic practitioner or naprapathic practitioner or practice polysomnography, pursuant to Section 61-7-3 NMSA 1978. All proceedings shall be as required by the Uniform Licensing Act or the Impaired Health Care Provider Act.
B. The board may, in its discretion and for good cause shown, place the licensee on probation on the terms and conditions it deems proper for protection of the public, for the purpose of rehabilitation of the probationer or both. Upon expiration of the term of probation, if a term is set, further proceedings may be abated by the board if the holder of the license furnishes the board with evidence that the licensee is competent to practice, is of good moral character and has complied with the terms of probation.
C. If evidence fails to establish to the satisfaction of the board that the licensee is competent and is of good moral character or if evidence shows that the licensee has not complied with the terms of probation, the board may revoke or suspend the license. If a license to practice in this state is suspended, the holder of the license may not practice during the term of suspension. A person whose license has been revoked or suspended by the board and who thereafter practices or attempts or offers to practice in New Mexico, unless the period of suspension has expired or been modified by the board or the license reinstated, is guilty of a felony and shall be punished as provided in Section 61-6-20 NMSA 1978.
D. "Unprofessional or dishonorable conduct", as used in this section, means, but is not limited to because of enumeration, conduct of a licensee that includes the following:
(1) procuring, aiding or abetting an illegal procedure;
(2) employing a person to solicit patients for the licensee;
(3) representing to a patient that a manifestly incurable condition of sickness, disease or injury can be cured;
(4) obtaining a fee by fraud or misrepresentation;
(5) willfully or negligently divulging a professional confidence;
(6) conviction of an offense punishable by incarceration in a state penitentiary or federal prison or conviction of a misdemeanor associated with the practice of the licensee. A copy of the record of conviction, certified by the clerk of the court entering the conviction, is conclusive evidence;
(7) habitual or excessive use of intoxicants or drugs;
(8) fraud or misrepresentation in applying for or procuring a license to practice in this state or in connection with applying for or procuring renewal, including cheating on or attempting to subvert the licensing examinations;
(9) making false or misleading statements regarding the skill of the licensee or the efficacy or value of the medicine, treatment or remedy prescribed or administered by the licensee or at the direction of the licensee in the treatment of a disease or other condition of the human body or mind;
(10) impersonating another licensee, permitting or allowing a person to use the license of the licensee or practicing as a licensee under a false or assumed name;
(11) aiding or abetting the practice of a person not licensed by the board;
(12) gross negligence in the practice of a licensee;
(13) manifest incapacity or incompetence to practice as a licensee;
(14) discipline imposed on a licensee by another licensing jurisdiction, including denial, probation, suspension or revocation, based upon acts by the licensee similar to acts described in this section. A certified copy of the record of disciplinary action or sanction taken by another jurisdiction is conclusive evidence of the ac